0320150081
02-18-2016
Chau Q.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chau Q.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Petition No. 0320150081
MSPB No. CH0351140723I1
DECISION
On July 14, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
Petitioner worked as a Physical Education (PE)/Health Teacher at the Agency's Jackson Elementary School facility in Fort Campbell, Kentucky. Petitioner alleged that the Agency discriminated against her on the basis of sex (female) when it made a decision to separate her effective June 28, 2014, as the result of a reduction-in-force (RIF).
A hearing was held and on May 11, 2015, an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency established that it invoked the RIF regulations for a legitimate management reason, and that it properly applied the regulations. Additionally, the AJ determined that Petitioner was unable to demonstrate that the RIF separation was in any way tainted by discriminatory animus because of her sex, and therefore unable to prove her affirmative defense of sex discrimination. Petitioner then filed the instant petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
The Commission finds that the MSPB's decision in the instant matter constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on sex, we agree with the MSPB that the Agency provided a legitimate, non-discriminatory reason for conducting the RIF separation. Petitioner presented no persuasive evidence of discriminatory animus surrounding the RIF separation.
The record evidence clearly establishes, and Petitioner does not dispute, that between September 28, 2012 and August 29 2014, total student enrollment at Jackson Elementary School declined by 222 children. Along with this decline in enrollment came an adjustment in staffing standards, and by the 2013-2014 school year Jackson Elementary School was allowed one PE Teacher.2 When it became clear that the initial attempt to reduce positions through voluntary means would not eliminate the need to implement the RIF, employees who were potentially being impacted by the staffing changes were advised that a RIF would be initiated on June 28, 2014. Along with advising Petitioner, and others, who were to be affected by the RIF that it was occurring, the Agency also placed Petitioner at the appropriate level within the competitive area. Petitioner did not challenge the Agency's definition of the RIF's competitive area. Ultimately Petitioner was granted a reassignment which she declined because she did not want to relocate due to her husband's employment. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to separate her was based on her sex.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/18/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The staffing standard did not change for the 2014-2015 school year and Jackson Elementary School was again limited to one Elementary PE Teacher.
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