Ernestine Blake, Petitioner,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 28, 2001
03a10033 (E.E.O.C. Feb. 28, 2001)

03a10033

02-28-2001

Ernestine Blake, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Ernestine Blake v. Department of the Treasury

03A10033

February 28, 2001

.

Ernestine Blake,

Petitioner,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Petition No. 03A10033

MSPB Docket No. NY-0752-99-0127-I-1

DECISION

INTRODUCTION

On December 5, 2000, Ernestine Blake (petitioner) timely filed a petition

with the Equal Employment Opportunity Commission (the Commission) for

review of the final order of the Merit Systems Protection Board (MSPB)

issued November 3, 2000, concerning her allegations of discrimination

based on reprisal (prior EEO activity) in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

The petition is governed by 29 C.F.R. � 1614.303 et seq. The MSPB

found that the agency had not engaged in discrimination as alleged by

petitioner. For the reasons that follow, the Commission concurs with

the decision of the MSPB.

ISSUE PRESENTED

The issue presented is whether the MSPB's determination that petitioner

failed to prove that the agency discriminated against her based on

reprisal when it terminated her employment as a Collection Analyst,

GS-301-9 constitutes a correct interpretation of the applicable laws,

rules, regulations, and policy directives and is supported by the record

as a whole.

BACKGROUND

According to the record, petitioner was a 28-year employee of the

agency. Between 1989 and 1995, she filed numerous civil actions based

on discrimination against the agency with the U.S. District Court

(Court). To assist with the expense related to her civil actions,

on two occasions, petitioner requested but was denied appointment of

counsel and, on seven occasions, petitioner requested and was granted

waiver of filing and service fees. On all nine requests, petitioner

significantly under-reported her monthly earned income (under-reporting).

In 1995, the U.S. Department of Justice (DOJ) became aware of petitioner's

under-reportings and gave her an opportunity to correct them with the

Court, seemingly without consequence.<1> Petitioner failed to correct

her under-reportings so DOJ filed a motion, with the Court, to dismiss the

civil actions of petitioner and to impose Rule 11 sanctions. In 1996, the

Court consolidated and dismissed with prejudice all cases involving claims

of employment discrimination filed by petitioner, ordered petitioner to

pay $700.50 as a sanction for her overly litigious behavior, and enjoined

petitioner from filing any further lawsuits without prior approval from

the Court. Criminal charges were filed against petitioner for perjury and

she was arrested, but later released on her own recognizance. The DOJ

deferred prosecution against petitioner contingent upon her complying with

the Court's order, which she did when she paid the $700.50 sanction.

On March 25, 1998, once petitioner's criminal prosecution was no longer

active, the agency issued petitioner a Notice of Proposed Removal for

willfully making false statements in violation of the agency's Minimum

Standards of Conduct. Petitioner submitted a written response to the

Notice but, on June 1, 1998, the responsible management official (RMO),

the District Director, sustained the Notice.

Believing she was a victim of discrimination, petitioner sought EEO

counseling, and, subsequently, filed a mixed case complaint<2> alleging

that the agency discriminated against her based on reprisal (prior EEO

activity). As provided by 29 C.F.R. � 1614.302(d)(1)(i), petitioner

subsequently filed an appeal on the same matter with the MSPB prior to

the agency issuing a final decision. Petitioner stated that the agency's

claims of willful false statements are stale, the significant delay in

disciplinary action by the agency supports her claim of retaliation,<3>

she made the under-reportings in error and not willfully, her 28 years

of relatively unblemished service with the agency and 31 years with the

Federal government should weigh heavily against the removal action.

The agency stated that it could not proceed with disciplinary action

against petitioner while criminal charges against her were active;

it is illogical that an individual would make the same error nine

times, especially an individual with petitioner's work background;<4>

petitioner's actions placed the integrity of the agency in a �bad light,�

particularly because agency employees are held to a higher standard;

petitioner did not show any remorse for her actions; and the agency lost

its trust in petitioner, which was very important for her position.

After an MSPB hearing on the matter, an Administrative Judge (AJ) issued

an initial decision finding that petitioner failed to establish a prima

facie case of discrimination based on retaliation. Specifically, the

AJ found that petitioner failed to show that a causal connection existed

between petitioner's prior EEO activity and the adverse action at issue

here. The AJ affirmed the agency's action. Petitioner subsequently filed

a petition for review to the Board, which was denied. This petition to

the Commission followed.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the MSPB with

respect to the allegation of discrimination based on reprisal constitutes

a correct interpretation of any applicable law, rule, regulation or

policy directive and whether said decision is supported by the evidence

in the record as a whole. 29 C.F.R. � 1614.305(c).

When a petitioner relies on circumstantial evidence to prove an agency's

discriminatory intent or motive, there is a three step, burden-shifting

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The initial burden is on the petitioner to establish a prima facie

case of discrimination. Id. at 802. The burden then shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. Id. If the agency is successful, the petitioner

must then prove, by a preponderance of the evidence, that the legitimate,

nondiscriminatory reason articulated by the agency is merely pretext

for discrimination. McDonnell Douglas, 411 U.S. at 804.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, petitioner must show: (1) that she engaged

in prior protected activity, e.g., participated in an EEO proceeding;

(2) that the RMO was aware of the protected activity; (3) that she

was subsequently disadvantaged by an adverse action; and, (4) that

there is a causal link between the protected activity and the adverse

employment action. Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F.Supp. 318, 324 (D. Mass), affirmed, 545 F.2d

222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,

86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10thCir. 1982), cert. denied, 459 U.S. 1071 (1982).

The causal connection may be shown by evidence that the adverse action

followed the protected activity

within such a period of time and in such a manner that a reprisal motive

is inferred. Simens v. Department of Justice, EEOC Request No. 05950113

(March 28, 1996) (citations omitted).

Petitioner filed several civil actions and administrative complaints

against the agency<5>, all of which the RMO was aware but not an

involved party. In addition, petitioner was removed from her position

for statements made in furthering her employment discrimination cases

against the agency. Based on the foregoing, petitioner established a

prima facie case of retaliatory discrimination.

The burden now shifts to the agency to articulate some legitimate,

nondiscriminatory reason for its challenged action. McDonnell Douglas

Corp. v. Green, 411 U.S. at 802. The RMO stated that petitioner willfully

made false statements in violation of the agency's Minimum Standards of

Conduct, which is an action that negatively effected the reputation of

the agency and caused the agency to lose faith in petitioner's integrity.

The RMO stated further that petitioner did not display any remorse for

her actions and that the agency could not implement disciplinary action

against petitioner until the criminal charges against her were resolved.

Because the agency was successful in satisfying its burden, the petitioner

must prove, by a preponderance of the evidence, that the legitimate,

nondiscriminatory reason articulated by the agency is merely pretext

for its discrimination. Id. at 804. Petitioner may do this in one

of two ways, either directly, by showing that a discriminatory reason

more likely motivated the agency, or indirectly, by showing that the

agency's proffered explanation is unworthy of credence. Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,

the fact finder must be persuaded by the petitioner that the agency's

articulated reason was false and that its real reason was discrimination.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Petitioner

stated that she erroneously made wrong statements to the Court and the

statements were made at least three years prior to her removal, which

makes the claims stale; that she paid back the court and service fees via

the $700.50 sanction she paid; and that the criminal charges against her

were dismissed. She stated further that the fact that she was removed

shortly after sending a letter to her congressional representative is

proof of retaliation by the agency.

The Commission is not convinced by petitioner's arguments. Rather,

the Commission agrees with the agency that (1) the probability that an

individual, specifically an individual of petitioner's work background,

would make the same mistake nine times is low, (2) petitioner's actions

are such that the reputation of the agency as well as petitioner's

integrity were put into question, and (3) petitioner's position as a

Collection Analyst required the trust of the agency. Finally, the time

frame for the sequence of events, from petitioner's initial notification

of the under-reportings to her removal, seems justified.

Petitioner failed to show that the legitimate, nondiscriminatory reason

articulated by the agency was pretextual. Thus, petitioner failed to

prove discrimination based on reprisal.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

Board'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.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to

file a civil action. Both the request and the civil action must be

filed within the time limits as stated in the paragraph above ("Right

to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 28, 2001

__________________

Date

1See U.S. Department of Justice letter dated

August 18, 1995.

2A mixed case complaint is a complaint of employment discrimination

filed with a Federal agency based on race, color, religion, sex, national

origin, age or handicap related to or stemming from an action that can

be appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. �

1614.302.

3In February 1998, petitioner sent a letter to her congressional

representative detailing the retaliation and harassment that she had

endured from the agency.

4According to the record, petitioner worked in a division of the agency

that collects delinquent taxes, levies wages, files liens, seizes

property, and adjusts tax liability. As a result, petitioner dealt with

figuring individuals' incomes frequently.

5The record revealed that petitioner's last civil action prior to her

removal was in 1995. The record, however, was not clear on whether

petitioner had an administrative complaint within such a time period to

the removal to support a causal connection.