0320150070
10-21-2015
Eleni M.,1 Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eleni M.,1
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320150070
MSPB No. CH-0752-14-0338-I-1
DECISION
On June 5, 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. For the reasons stated below, the Commission CONCURS with the MSPB's finding of no discrimination.
BACKGROUND
Petitioner worked as a Liaison Specialist/Business Community/Wildlife Fire Coordinator, GS-9 at the Agency's Great Onyx Job Corps Center facility in Mammoth Cave, Kentucky. As a Wildlife Fire Coordinator, Petitioner was tasked with assisting Job Corp students with finding employment. She was also tasked with supervising Job Corps students in conducting the Fire Team's duties. In May 2013, Petitioner was accused of engaging in an inappropriate relationship. On May 29, 2013, she was placed on administrative leave pending an investigation. The investigation included allegations of inappropriate relationships with students including giving them alcoholic beverages. On November 18, 2013, after the Agency completed its investigation, a Notice of Proposed Removal was issued. The Notice of Proposed Removal cited five charges: (1) conduct unbecoming a Federal Employee (nine specifications of having inappropriate relations with students); (2) failure to follow Job Corps Employee Standards of Conduct with students (five specifications, which include buying students alcohol, permitting students to fire a revolver in the woods, and allowing students to consume alcohol); (3) allowing students to drive a government owned vehicle without a government license; (4) allowing students to drive after consuming alcohol; and (5) operating a government owned vehicle after consuming alcohol. Upon review of the investigation, the deciding official sustained the charges and decided to remove Petitioner effective February 4, 2014.
Petitioner alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female) and reprisal for prior protected EEO activity when she was removed from her position.
At Petitioner's request, a hearing was not and a decision was made on the record. Thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency had proven its charges. The AJ also found that Petitioner failed to prove her affirmative defenses.
The AJ found that Petitioner did not meet her burden of establishing that the Agency retaliated against her. First, the AJ noted that the Petitioner had not filed an EEO complaint with her Agency but had filed a complaint with the EEOC and the matter was dismissed for lack of jurisdiction. Further, the AJ found that Petitioner's argument that she was removed from her position to cover up the fact that her supervisors failed to properly train her, and, in fact, condoned her behavior was not supported by the record. The AJ found that Petitioner did not show that management was aware of any prior EEO activity. Moreover, other than Petitioner's claims of reprisal there was no evidence to support a finding that Petitioner, who admitted to the majority of the charged misconduct, was retaliated against by management.
The AJ also found that Petitioner failed to show that the Agency discriminated against her based on her sex. Petitioner alleged that male employees suspected of misconduct were treated differently. The AJ found that the evidence showed that employees accused of sexual misconduct were fired just as Petitioner was. The AJ found that the Agency established a legitimate, nondiscriminatory reason for Petitioner's removal. He noted that Petitioner admitted that she was sexually involved with two students who were brothers, and she admitted to allowing students to use her firearm. She also allowed students to drive a government owned vehicle without proper licenses and training. She allowed students to consume alcohol in her presence, and she admitted she consumed alcohol and afterward drove a government vehicle in the presence of the students.
Finally, the AJ found that Petitioner failed to show that she was subjected to a hostile work environment when derogatory comments and rumors were allowed to spread about her or when one of the supervisors said he thought she would do a fine job for a woman. The AJ determined that there was no evidence presented which indicated that these comments were severe or pervasive enough to establish a hostile work environment.
Petitioner then filed the instant petition. Petitioner maintains that the Agency committed harmful error as she was not allowed to confront her accusers. Petitioner contends that the AJ did not have a full record and she never received a copy of the investigative report from the Agency. She also asserts that the AJ had exparte communications with the Agency's representative and that the AJ took 10 months to issue her decision.
In response, the Agency, among other things, requests that the Commission concur with the MSPB's finding of no discrimination.
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).
In the instant case we find that even if we assume, arguendo, that Petitioner established a prima face case of reprisal and sex discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner, among other things, was removed from her position because she had sex with students. Moreover, we note that Petitioner admits that she "kissed and fooled around with" at least two of the students. This in and of itself supports the Agency's termination action. Accordingly, we find that Petitioner did not show that the Agency's reasons were pretext for discrimination and/or reprisal.
We also find that Petitioner failed to establish that she was subjected to a hostile work environment. A few isolated incidents cited by Petitioner were not severe or pervasive enough to establish a hostile work environment.
With respect to Petitioner's contentions on appeal, we find, with regard to the matters that are properly before us for review, that other than her conclusory statements, she has provided no evidence which suggests that her sex or prior EEO activity were considered with respect to the Agency's removal action.2
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. signature
Carlton M. Hadden, Director
Office of Federal Operations
__10/21/15________________
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 To the extent that Petitioner believes that the MSPB AJ engaged in misconduct, she should raise her concerns with the MSPB.
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