0320150033
02-11-2016
Emilio K.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emilio K.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320150033
MSPB No. CB7121130181V1
DECISION
On February 20, 2015, Petitioner filed a timely petition with the Equal Employment Opportunity 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. For the following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly determined that the Agency did not discriminate against Petitioner on the basis of reprisal for prior EEO activity when it removed him.
BACKGROUND
Petitioner worked as an Information Technology (IT) Specialist at the Agency's VA Benefits Delivery Center in Philadelphia, Pennsylvania. Petitioner alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when the Agency removed him on June 5, 2009. On or about January 25, 2009, Petitioner changed the password on an administrator account using a password cracking software and took memory from another computer and installed it on his machine. Petitioner received a new computer and wanted to install software to help him transfer his data from his old computer. Using a password cracking software, he changed an administrator password to gain administrative privileges on his new computer to install the software. Petitioner also took a memory stick from an unused workstation to increase his computer's performance. Another IT Specialist (ITS) stated that the Agency routinely scans computers to check for vulnerabilities but that Petitioner's computer could not be scanned. ITS went to Petitioner's workstation and after he determined Petitioner's actions, he notified Agency officials, including Petitioner's managers, via email.
Petitioner met with his managers on February 5, 2009, who informed him that the Agency was investigating these incidents and suspending his computer access. His supervisor also gave him a medical information request form based on some of Petitioner's recent behavior, including crying during a conversation about responding to emails; slamming his hand so hard that he broke his hand; falling asleep at his desk and; forgetting a work project that he had been working on for the past six months and attributing his forgetfulness to medication. Petitioner initiated EEO counseling on February 17, 2009 because he was uncomfortable with the medical request. On February 24, 2009, a counseling notice was sent to Agency officials informing them that Petitioner met with an EEO counselor. Petitioner's counsel also sent an email to Agency officials regarding Petitioner's EEO contact on March 27, 2009.
On April 2, 2009, the Agency issued Petitioner a Proposed Removal Notice based on his unauthorized changes to administrative privileges multiple times and unauthorized changes to his workstation. Petitioner presented an oral reply on May 11, 2009, and sent a written reply on May 14, 2009. On May 28, 2009, the Agency decided to remove Petitioner, with an effective date of June 5, 2009. In its decision, the Agency determined that Petitioner's actions violated the Agency's directives and "Rules of the Road." Additionally, the deciding official (DO) noted that Petitioner's managers lost trust in him and saw him as a security risk. DO found his use of the password cracking software "intolerable."
On June 23, 2009, Petitioner filed a grievance regarding his removal. The union invoked arbitration and a hearing was held on February 24-25, June 20, and June 29, 2011. On February 13, 2013, the Arbitrator issued an Opinion and Award. The Arbitrator determined that the removal was excessive, in light of Petitioner's misconduct, and mitigated the removal to a 10 day suspension. However, the Arbitrator was unable to conclude that the decision to remove Petitioner was motivated by discrimination based on reprisal.
Petitioner requested a review of the Arbitrator's decision to the MSPB on April 11, 2013. On May 8, 2014, the MSPB issued a Final Order ordering the Agency to cancel Petitioner's removal based on a due process violation. The MSPB found that DO took into consideration a prior incident of misconduct when she determined that he lacked rehabilitation potential, but the Agency did not include this information in the notice of proposed removal.2 While Petitioner raised the due process issue before the Arbitrator, she did not address it in the opinion.
The MSPB also held that Petitioner did not prove his affirmative defense of retaliation for prior EEO activity. The proposing official (PO) testified that she learned of Petitioner's prior EEO activity only a few days prior to issuing the notice, but that she already had been working on Petitioner's discipline for approximately one and a half to two months. The MSPB concluded that PO had already decided to issue some discipline to Petitioner prior to learning of his EEO activity. At the hearing, DO denied making her decision to remove Petitioner in retaliation for his EEO activity and Petitioner did not challenge her testimony.
Petitioner argued that the delay in starting the investigation from the time of the incidents demonstrates the Agency's retaliatory motive. However, the MSPB found that the investigation into Petitioner's actions started on February 5, 2009, before his initial EEO contact. Petitioner also argued that the Agency failed to investigate and discipline others, which shows pretext for its discriminatory actions but Petitioner did not name the coworker who provided the password cracking software prior to his removal.3 Additionally, the MSPB noted that Petitioner did not provide the name of any other coworker, outside of his protected basis, who engaged in similar activity but was treated more favorably. Accordingly, the MSPB found that Petitioner did not show by a preponderance of the evidence that the Agency based its decision to remove him in retaliation for his EEO activity.
Petitioner then filed the instant petition.4 Petitioner argues that the MSPB erred in not finding discrimination based on reprisal for prior EEO activity because it did not consider the evidence in the record as a whole. Petitioner alleges that he established pretext for discrimination because the Agency magnified and embellished his misconduct; failed to conduct an investigation of the network for possible security breaches; made accusations that Petitioner's conduct presented clear potential for significant damage to the security of their network and; withheld information which it relied upon to justify his termination.
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
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, he 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 his 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).
Reprisal
Petitioner 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. v. Green, 411 U.S. 792, 802 (1973)). 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), Petitioner may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he 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).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Assuming, arguendo, that Petitioner had established a prima face case of discrimination based on reprisal, we agree with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for removing Petitioner. The Agency removed Petitioner based upon his unauthorized access of an administrator account multiple times and unauthorized changes to his workstation, in violation of the Agency's policies. While the MSPB determined that it was improper for the Agency to consider Petitioner's prior misconduct without giving him an appropriate opportunity to respond, DO stated that this prior incident, in addition to Petitioner's recent misconduct, led her to believe that his likelihood for rehabilitation was low.
Additionally, we agree with the MSPB that Petitioner did not demonstrate that any conduct on the part of the Agency was based on any discriminatory animus. Petitioner alleges pretext for discrimination because the Agency magnified and embellished his misconduct; failed to conduct an investigation of the network for possible security breaches; made accusations that his conduct presented clear potential for significant damage to the security of their network and; withheld information which it relied upon to justify his termination. However, Petitioner did not provide evidence of any of these alleged indicators of pretext described above beyond his own assertions. He has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the Agency for removing Petitioner. Rather, the record shows that other Agency witnesses were concerned about Petitioner's actions posing possible security risks to the Agency's systems because he gave himself administrative privileges, which he was not approved to have.
Petitioner claims that he has presented evidence which calls an Agency official's veracity into question. Petitioner argues that the MSPB erred in its conclusions about the veracity of PO when the MSPB decided that PO learned of Petitioner's EEO activity just days prior to making her decision. Petitioner alleges this is incorrect because PO testified that she did not know of his EEO activity at the time of the proposed removal. However, at the hearing, when Petitioner's counsel questioned PO about that testimony, she clarified that she did not recall the exact timing of when she was notified of Petitioner's EEO contact and that she recalled receiving counsel's email notifying her of Petitioner's EEO activity around March 27, 2009, which was just prior to when she issued the April 2, 2009, Notice of Proposed Removal. We find that the MSPB's conclusion about the timing of PO's knowledge of Petitioner's EEO activity is supported by substantial evidence.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove him was based upon reprisal.
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 Petitioner'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
__2/11/16________________
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 In July 2003, Petitioner attended a training conference and did not log off the virtual private network while using his computer at his hotel. The Agency counseled him but did not formally discipline Petitioner for this incident.
3 The record shows that after Petitioner provided their names, the Agency questioned two coworkers, including the coworker who provided the software cracking software, and both coworkers stated that they did not engage in similar conduct.
4 Petitioner initially filed his Petition for Review on June 9, 2014, but the matter of his attorney's fees was still pending before the MSPB and the Commission considered his initial petition premature. He re-filed his petition on February 17, 2015, following the MSPB's Final Order dated January 16, 2015.
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