0320180016
03-05-2018
Elvera S.,1 Petitioner, v. Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elvera S.,1
Petitioner,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 0320180016
MSPB No. DC0752150429I1
DECISION
On November 21, 2017, Petitioner timely filed a 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 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 following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that she was subjected to discrimination based on reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as a Systems Accountant, GS-13, at the Agency's Systems Accounting Branch Customer Service and Support, Financial Management Portfolio Accounting Services Program Support Center in Washington, D.C. Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, on July 30, 2014, the Agency proposed Petitioner's removal based on charges of inappropriate conduct and failure to follow supervisory instruction.
A hearing was held and an MSPB Administrative Judge (AJ) thereafter issued an initial decision reversing the Agency's actions. The AJ found that Petitioner's due process rights were violated because Petitioner was not aware of the contentions against her and therefore did not have the opportunity to respond. The AJ also found that Petitioner's due process rights were violated when the deciding official relied on new and material information he obtained during ex parte communications with Petitioner's supervisor and coworker to sustain the Agency's charge. The AJ found that the deciding official's testimony was not credible, as he changed his story between his sworn deposition and his sworn hearing testimony. The AJ found that, because the Agency violated Petitioner's due process rights, her removal had to be cancelled.
Further, the AJ found that Petitioner did not demonstrate that she was subjected to retaliation. Petitioner alleged that the Agency's removal action amounted to retaliation for her EEO activity because the proposal notice considered the fact that she refused to engage in mediation to resolve her pending EEO complaints. The AJ found credible testimony that indicated that, in the initial draft of the proposal notice, it referred to Petitioner declining repeated offers for mediation, but the language was changed in the final version to declining repeated offers for assistance.
Petitioner demonstrated that she engaged in protected EEO activity, that such activity occurred sufficiently proximate to her proposed and effected removal to imply causation (or that any other basis to find causation existed), and that the proposing and/or deciding official had actual knowledge of such activity. However, Petitioner did not demonstrate that there was a genuine nexus between her EEO activity and her removal. The AJ determined that, in light of the numerous disciplinary issues and the progressive discipline imposed on Petitioner, the supervisor's testimony concerning his statement in the proposal notice was credible. The record, both documentary and testimonial, established that there was a massive communication problem between Petitioner and her supervisor. The AJ found that the problems with their interactions were not being resolved by imposing discipline, so it was reasonable for Petitioner's supervisor to suggest EAP, mediation, or other forms of assistance to Petitioner during the disciplinary process. The AJ determined that, other than Petitioner's claim that the language change seemed suspicious, there was no evidence to demonstrate that this statement was in any way related to her EEO activity. The AJ found no nexus between Petitioner's EEO activity and her removal; therefore, it was determined that Petitioner failed to meet her burden to establish her retaliation claim by preponderant evidence.
In finding no discrimination, the Board relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the Board maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
Petitioner then filed the instant petition. On appeal Petitioner requested an extension to submit a statement or brief in support of her petition. Petitioner's request was denied, as EEOC regulations at 29 C.F.R. � 1614.304(b)(3) require the concurrent submission of the petition for review and supporting statement. Petitioner was informed that, as the time frames are strictly enforced, her request for an extension was denied. The Agency did not provide a response.
ANALYSIS AND FINDINGS
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).
Disparate Treatment
In Petitioner's case, we find that the Board erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of discrimination when the Agency removed her; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ and the Board correctly determined that Petitioner did not establish that the Agency discriminated against her, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Found for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In the instant case, Petitioner argued that she was subjected to reprisal because the Proposal to Remove Notice considered the fact that she refused to engage in mediation to resolve her pending EEO complaints. We find that, even if we assume arguendo that Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that the Agency initially noted that mediation had been offered to resolve Petitioner's issues with her supervisor but that she had refused to engage in the process. This was done to demonstrate that the Agency had attempted to resolve the problems with Petitioner and her supervisor, but she was not interested. Notwithstanding, the language was ultimately removed from the final Proposal to Remove. We find that, other than Petitioner's conclusory statement that the language was "odd," she has provided no evidence that the instant Removal Notice was a result of her failure to participate in mediation. The Removal Notice was issued based on the charges of inappropriate conduct and failure to follow supervisory instruction. Accordingly, we find that Petitioner has not shown that the Agency's legitimate, nondiscriminatory reason was pretext for discrimination.
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 unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
__3/5/18________________
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.
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