0320180037
06-12-2018
Deandre C.,1 Petitioner, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Deandre C.,1
Petitioner,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Petition No. 0320180037
MSPB No. DC-0752-15-0923-I-2
DECISION
On February 26, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's finding that Petitioner did not establish that the Agency discriminated against him based on disability and reprisal for prior protected EEO activity when it issued him a June 5, 2015, Decision on Notice of Proposed Suspension, suspending him for thirty days for lack of candor.
BACKGROUND
Petitioner worked as a Physical Scientist (Compliance Officer) with the Commercial Remote Sensing Regulatory Affairs Office (CRSRA), National Environmental Satellite, Data, and Information Service (NESDIS), National Oceanic and Atmospheric Administration (NOAA). His duties included the inspection of licensees' facilities.
Petitioner has filed prior EEO complaints, including a 2008 complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race and reprisal for protected EEO activity. On March 24, 2015, the EEOC's Office of Federal Operations affirmed an EEOC Administrative Judge's finding that the Agency had not discriminated against Complainant with respect to several incidents but had engaged in reprisal when a supervisor pressured him to drop his EEO complaint. EEOC Appeal No. 0120130553 (Mar. 25, 2015). In addition, Petitioner engaged in prior EEO activity when he requested reasonable accommodation on February 24, 2014.
On March 18, 2014, the CRSRA Director (S1) sent an e-mail to CRSRA staff regarding the scheduling of on-site inspections. She asked staff to coordinate travel with the licensees and to let her know when they had confirmed the travel dates. S1 assigned Petitioner conduct inspections in California for up to 10 days in May 2014.
On April 28, 2014, Petitioner sent two e-mails to his co-worker, the Senior Licensing Officer (CW1), regarding his scheduled travel. In the first e-mail, Petitioner stated that his scheduled travel dates were May 15 through 24, 2014. A few minutes later, Petitioner sent CW1 an e-mail stating that the correct dates were May 7 through 17, 2014.
In an April 29, 2014, e-mail, S1 asked Petitioner for his proposed schedule in California and a "detailed itinerary." Petitioner replied that he would conduct inspections from May 18 through 24, 2014, and listed the dates on which various inspections would occur. He stated that the inspections were confirmed with the licensees. S1 asked him to schedule at least two inspections per day. Petitioner was on leave from April 30 through May 7, 2014.
According to CW1, a representative from one of the California licensees contacted CW1 on May 7, 2014, to inquire about the confirmation of a May 9 inspection. CW1 informed S1, who asked CW1 to contact the other California licensees and cancel any inspections that were scheduled for that week. CW1 and another co-worker contacted the licensees, and CW1 gave S1 a memorandum stating that no inspections had been confirmed with any of the licensees. S1 e-mailed Petitioner on May 7, 2014, and stated that the California licensees apparently had not been notified of the need to reschedule the inspections. Petitioner returned to work on May 12, 2014, and met with S1.
In a November 13, 2014, Notice of Proposed Suspension, S1 proposed to suspend Petitioner for 30 days for lack of candor. The Notice cited three specifications: (1) Petitioner's April 29, 2014, e-mail lacked candor because Petitioner had not scheduled inspections for the dates he listed and had not confirmed the dates with the licensees; (2) on May 12, 2014, when S1 asked Petitioner to explain the discrepancies between the dates that he listed in his April 29 e-mail and the dates that he had given to licensees, Petitioner first accused S1 of lying and then told her that he had notified the licensees of the later dates and did not know why the licensees were lying about the dates; and (3) Petitioner did not attend a Change Control Board (CCB) meeting on September 30, 2014.
On June 5, 2015, the NESDIS Deputy Assistant Administrator (S2) issued a decision upholding Specifications 1 and 2. S2 found that four of the six inspection dates that Petitioner listed in his e-mail did not reflect the dates that Petitioner had discussed with the licensees and that Petitioner had not confirmed any of the inspections. S2 also found that Petitioner lacked candor during his May 12, 2014, conversation with S1. He did not uphold Specification 3.2 S2 concluded that a thirty-day suspension was appropriate.
MSPB Decision
Petitioner filed a mixed-case appeal with the MSPB alleging that the Agency discriminated against him on the basis of disability and in reprisal for prior EEO activity when it suspended him. On December 22, 2017, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming the suspension and finding no discrimination.
The MSPB AJ concluded that the evidence supported the charge that Petitioner lacked candor in his communications with S1. With respect to Specification 1, the AJ found that Petitioner lacked candor when he stated that he had confirmed inspection dates with the licensees. An e-mail from the office that handles travel arrangements showed that Petitioner had made reservations for May 15 through 24, 2014, but it did not establish that he had confirmed the dates with the licensees. The AJ found that Petitioner "misrepresented the status of the inspections to "S1" and "lacked candor in his representations to" S1.
With respect to Specification 2, the AJ found that Petitioner accused S1 of lying to him about the unconfirmed inspection dates. When she showed him e-mails in which licensees stated that he had contacted them about potential inspection dates but had not confirmed the dates, Petitioner accused the licensees of lying. The AJ found that Petitioner knew that his accusations were false.
The AJ found that Petitioner did not establish that the Agency issued the suspension in reprisal for his protected EEO activity. He noted that S1, S2, and CW1 were aware of Petitioner's prior EEO activity. He also noted that CW1 had "filed an EEO complaint against [Petitioner] because of the work environment created by [Petitioner's] offensive behavior toward him and others" and had acknowledged that "he had become frustrated with the amount of time required to answer complaints and questions from investigators." The AJ found that S1 and S2 "testified in a straight-forward, confident manner" and were credible. He concluded that the Agency articulated a legitimate, nondiscriminatory reason for its action, that Petitioner gave false statements to S1, that the Agency's action was justified, and that Petitioner did not establish a nexus between his protected activity and the suspension.
The AJ further concluded that Petitioner did not establish that the Agency discriminated against him on the basis of disability when it issued the suspension. The AJ noted that Petitioner submitted a February 24, 2014, request for reasonable accommodation and that S1 and S2 were aware that Petitioner had requested accommodation. He found that Petitioner did not have a "disability" as defined by the Rehabilitation Act. Further, assuming that Petitioner is a qualified individual with a disability, the AJ found that the Agency issued the suspension because of Petitioner's misconduct, not because of his disability.3
On January 26, 2018, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
Petitioner, through his attorney representative, argues that the MSPB AJ erroneously found that the Agency did not discriminate against him when it suspended him. He contends, among other things, that he is a qualified individual with a disability, that he engaged in EEO activity when he requested reasonable accommodation "[f]rom June 2013 through present," that he named S1 and S2 as Responsible Management Officials in prior EEO complaints, and that S1, S2, and CW1 were aware of his prior EEO activity.
Petitioner further contends that there is a nexus between the suspension and his disability and EEO activity. He argues that there is a close temporal proximity between his protected activity and the suspension. He notes that S1 responded to his reasonable-accommodation request on May 1 and e-mailed an Employee and Labor Relations Specialist on May 13, 2014, to begin the suspension process. He also notes that he received a favorable decision on a prior complaint in March 2015 and filed an informal complaint in March 2015 and subsequent formal complaint in May 2015. Petitioner asserts that "knowledge of [his] past EEO activity permeated the Agency." Petitioner also asserts that the Agency treated a similarly situated employee differently from the way that it treated him. On that point, he argues that S1 made inaccurate statements in the Notice of Proposed Suspension to support Specification 3 but was not disciplined. Petitioner further argues that S1 and CW1 engaged in per se reprisal. He states that, at the hearing, CW1 "expressed frustration with Petitioner's EEO activity, lamenting over the 'many hours' it took for him to address the complaints and complaining Petitioner was misusing the EEO process, creating a burden on the Agency." He notes that S2 testified that S1 mentioned Petitioner's EEO complaints to him and told him that she was frustrated. Further, Petitioner testified that there was "one instance" where he was discussing work activities with S1 and she indicated that did not have time for him because she was "having to address all these EEO issues."
In addition, Petitioner argues that the Agency is liable under the "cat's paw" theory of liability applies because CW1 harbored discriminatory animus against Petitioner, CW1 was involved in the investigation regarding Petitioner's scheduling of compliance inspections, and S2 relied on CW1's memorandum when upholding the suspension. He further argues that the Agency's articulated reasons for the suspension are a pretext for disability-based discrimination and reprisal. He states that CW1 had expressed concerns about Petitioner's mental health, CW1 and S1 expressed frustrations about Petitioner's EEO activity, and S2 relied on information from S1 and CW1.
Finally, Petitioner argues that the AJ made erroneous credibility determinations. He contends that CW1 was biased against him and that the AJ should not have credited CW1's testimony. He similarly contends that S1 also was biased against him and that she exaggerated her reasons for proposing the suspension. Petitioner argues that S2 should not have relied on information from CW1 and S1 when upholding the suspension.
In response, the Agency argues that the record supports the AJ's decision. The Agency maintains that it had legitimate, nondiscriminatory reasons for issuing the suspension and that Petitioner has not established an inference of discrimination or retaliation. Noting that Petitioner requested reasonable accommodation on February 24 and S1 issued the Notice of Proposed Suspension on November 13, 2014, the Agency contends that Petitioner has not established temporal proximity between the suspension and his accommodation request. The Agency argues that Petitioner has not shown that S2 was aware of Petitioner's March and May 2015 EEO activity when S2 issued the June 5, 2015, decision upholding the suspension, and it notes that S2 testified that he did not recall being told of the March 2015 EEOC decision in Petitioner's favor. The Agency also argues that S1 was not a similarly situated employee and that there is no evidence that she lacked candor. It states that, on December 10, 2014, S1 informed S2 that she had mistakenly thought that Petitioner's calendar indicated that the CCB meeting was on September 30, when Petitioner was in the office, rather than on September 26, when Petitioner was on leave. In addition, the Agency contends that the record contains no evidence of per se retaliation.
The Agency further contends that Petitioner has not established discrimination under the "cat's paw" theory. It notes that S1 and S2 relied on licensees' e-mails, which demonstrated that Petitioner had not confirmed the inspection dates, in addition to CW1's memorandum. In addition, the Agency argues that Petitioner has not shown that the articulated reasons for the suspension were pretextual. Finally, the Agency maintains that the record supports the MSPB AJ's credibility determinations.
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
To prevail in a disparate-treatment claim such as this, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). An individual can engage in activity protected under Title VII by opposing a practice made unlawful by Title VII or by filing a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. � 2000(e)-3(a). Further, a request for reasonable accommodation is protected activity. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at II.A.2.e. (Aug. 25, 2016).
We assume, for purposes of analysis only and without so finding, that Petitioner has established prima facie cases of discrimination based on race and reprisal. The Agency has articulated legitimate, nondiscriminatory reasons for its actions, i.e., the Agency issued the suspension because Petitioner lacked candor when he informed S1 on April 29, 2014, that he had scheduled inspections for certain dates and that the inspections were confirmed. In addition, the Agency determined that Petitioner lacked candor when he met with S1 on May 12, 2014, and accused her and the licensees of lying.
Petitioner has not established that the articulated reasons are pretextual. He has not shown that the Agency's reasons are unworthy of credence. The record establishes that Petitioner engaged in the conduct charged in Specifications 1 and 2. He made incorrect representations to S1 when he informed her that he had scheduled inspections for certain dates and that he had confirmed the dates with the licensees. He subsequently asserted that S1 and the licenses were lying. Petitioner has not shown that other, similarly situated employees engaged in similar misconduct but were not disciplined. S1 is not similarly situated to Petitioner. The evidence does not establish that she knowingly made false statements when she asserted in the Notice of Proposed Suspension that the CCB meeting had occurred on a day when Petitioner was in the office.
Further, Petitioner has not established that a discriminatory reason more likely motivated the Agency's actions. The temporal proximity between his EEO activity and the Agency's actions does not establish reprisal here, where the evidence establishes that Petitioner engaged in the charged misconduct. Similarly, although S1's and CW1's professed frustration with Petitioner's EEO complaints is evidence of bias, it is insufficient to overcome the clear evidence that the Agency took the action at issue because of Petitioner's demonstrated lack of candor.
In addition, we find that Petitioner has not established discrimination under the "cat's paw" theory of liability. Under the "cat's paw" theory, animus and responsibility for an adverse action can be attributed to a supervisor who was not the ultimate decision maker, if that supervisor intended the adverse action to be a consequence of his or her discriminatory conduct. See Feder v. Dep't of Justice, EEOC Appeal No. 0720110014 (July 19, 2012) (appropriate, under "cat's paw" theory, to impute manager's retaliatory animus to deciding official where manager wielded sufficient informal power to influence deciding official and deciding official acted as conduit for manager's retaliatory animus related to complainant's reasonable accommodation); cf. Staub v. Proctor Hosp., 562 U.S. 411 (2011) (employer liable, under Uniformed Services Employment and Reemployment Rights Act, for discriminatory animus of supervisor who did not make the ultimate employment decision where supervisor performs an act motivated by discriminatory animus that is intended to cause an adverse employment action and the act is the proximate cause of the ultimate employment action). In this case, we cannot say that CW1's involvement in the investigation into the scheduling of compliance inspections caused the suspension. Although S1 and S2 relied in part on CW1's memorandum stating that no inspections had been confirmed with any of the licensees, they also relied on information from the licensees. The licensees' information established that Petitioner had not confirmed the inspection dates.
Finally, we are not persuaded by Petitioner's argument that the AJ made erroneous credibility findings. We accept the AJ's demeanor-based credibility determinations. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015) (an AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it). Moreover, we find that the record supports the AJ's conclusion that management did not discriminate against Petitioner on the basis of disability or reprisal when it issued the thirty-day suspension.
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
_6/12/18_________________
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 In Specification 3, S1 asserted that Petitioner lacked candor when he told the CCB meeting facilitator that he could not attend a meeting on September 30, 2014, because he was out of the office due to illness. S1 noted that Petitioner had been in the office on September 30. In his response to the Notice of Proposed Suspension, Petitioner submitted e-mails showing that the meeting occurred on September 26 and leave records showing that he had taken sick leave that day.
3 The AJ also found that Petitioner did not show that the Agency's action resulted from discrimination based on race. Petitioner does not challenge this finding in his petition.
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