0320150065
02-23-2016
Faustina L.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Faustina L.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0320150065
MSPB No. DE0752130015I1
DECISION
On May 27, 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 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly decided that the Agency did not discriminate against Petitioner based on sex, disability, age and in reprisal for prior EEO activity when it reduced her pay band and pay.
BACKGROUND
Petitioner worked as an Assistant Federal Security Director - Inspections (AFSD-I) at the Agency's Denver International Airport in Denver, Colorado. Petitioner alleged that the Agency discriminated against her on the bases of sex (female), disability (depression), age (52), and in reprisal for prior protected EEO activity when it reduced her pay band and pay on September 9, 2012.
On June 30, 2011, the Deputy Federal Security Director (DFSD) issued Petitioner a Performance Improvement Plan (PIP) for unacceptable performance in four core competencies: Accountability, Decisiveness, Supervision, and Communication.2 Prior to the PIP, Petitioner's former supervisors met with her in February 2011, to discuss her performance deficiencies, which they also memorialized in memos sent to Petitioner.3 On June 8, 2011, Petitioner and DFSD met to discuss the performance concerns that had been raised by the former supervisors. When DFSD later issued the PIP, he noted that there were some improvements but that Petitioner's performance remained unacceptable.
On January 5, 2012, DFSD issued Petitioner a Notice of Proposed Demotion from AFSD-I, SV-1801-K to a Supervisory Transportation Security Inspector (STSI), SV-1801-J for unacceptable performance. Specifically, Petitioner was charged with not improving performance in Decision Making, Communication and Supervisory Skills, for example:
1. Petitioner was not responsive or available for consultation on security incidents. For 25 security issues, Petitioner participated four times. She stated that she did not receive notices on three occasions. Assuming that she would have participated in those three calls, Petitioner's response rate was 28%. Additionally, Petitioner's staff participated 56% of the time.
2. After an issue where a ground security coordinator did not properly read the secure flight documents, Petitioner did not quickly assess the situation and respond with an appropriate plan of action.
3. Petitioner sent an email to a Human Resources (HR) Specialist regarding a change to her employees' titles, without first discussing the matter with any of her supervisors.
4. Petitioner canceled a meeting at the last minute and did not communicate the cancellation to the participants, who had rearranged their schedules to attend the meeting.
5. Petitioner did not take initiative to address her staff's issues but rather waited to be told by her supervisor to address an issue, such as overtime and late reports from her staff.
DFSD noted that he continued to advise Petitioner during weekly meetings and that she made "minor successes," but overall, Petitioner did not meet performance standards. DFSD also stated that he did not see that she could perform her current position successfully because she made excuses instead of owning the problems and developing corrective solutions.
Petitioner provided a response to the proposal on January 24, 2012. Petitioner alleged that during the time of her PIP, she was never given feedback that she was not meeting performance expectations. Petitioner, who disputed DFSD's notes regarding topics discussed at their meetings, claimed that DFSD verbally informed her twice that she had passed the PIP.
On September 4, 2012, the deciding official (DO) issued the Notice of Decision on Proposed Reduction in Pay Band/Pay Rate, reducing Petitioner's position from AFSD-I to STSI, effective September 9, 2012.4 DO considered the information provided in Petitioner's written reply and concluded Petitioner could not perform successfully in her current position. DO also noted that she had concerns about Petitioner's ability to accept responsibility for her inability to perform.
Petitioner appealed the decision with the MSPB on October 5, 2012, and a hearing was held on June 5-7, and June 11, 2013. The MSPB Administrative Judge (AJ) issued the Initial Decision on March 5, 2014, reversing the reduction in pay band and pay. The AJ found that the Agency did not meet its burden of proof showing that Petitioner's performance standards were in compliance with its own directive; that the performance expectations were achievable and; that it gave clear meaning to the standards or provided a firm benchmark for Petitioner to improve.
However, the AJ found that Petitioner did not prove her affirmative defense of discrimination based on sex, disability, age and reprisal for prior EEO activity. In regards to Petitioner's claim that she was discriminated against based on her disability, the AJ determined that Petitioner was a qualified individual with a disability but that she did not show that the Agency discriminated against her due to her disability. The AJ also noted that Petitioner did not present any evidence of a similarly situated, non-disabled employee, who was treated more favorably.
In support of Petitioner's claim that she was discriminated against based on sex and age, she named a 60-year old male comparator (C1) who was issued a PIP that was later withdrawn. The Agency withdrew C1's PIP because he applied to take a downgrade at another facility and the Agency decided that it did not make sense to move forward with a PIP considering C1's plans to leave his current position. The AJ found that C1 was not similarly situated because he had a different supervisor and because Petitioner had not voluntarily applied to take a downgrade. Petitioner also named another comparator (C2) claiming that he received a PIP that was more detailed and specific than hers. However, the AJ found that C2 was not similarly situated because he held a different position with a different supervisor. Petitioner also alleged that she was treated differently because she came from the Federal Aviation Administration, which was perceived as the "old ways." The AJ found that Petitioner did not meet her burden showing that age was a factor in the Agency's decision.
Petitioner also alleged that the Agency demoted her in retaliation for a 2010 EEO complaint. The AJ held that Petitioner had not shown that her current managers were motivated to retaliate against her because of an EEO complaint from years earlier, involving different management officials who were no longer at the Denver location. Petitioner filed another EEO complaint on April 26, 2012. The AJ found that since she filed her new EEO complaint after she was issued the proposed demotion, DFSD could not have retaliated against her when he issued the proposal. The AJ also determined that DO learned of Petitioner's new EEO complaint after she had drafted and forwarded her decision upholding the demotion.5 The AJ concluded that Petitioner did not show similarly situated comparators who were treated more favorably; that the timing of the Agency's action was suspicious or; pretext for discrimination.
In the Initial Decision, the AJ also addressed the "cat's paw" theory because Petitioner alleged that the Federal Security Director (FSD) possessed a discriminatory animus against Petitioner and influenced DFSD in his decision to propose the demotion. However, the AJ concluded that the FSD was "frustrated" with Petitioner's performance and not motivated by any of Petitioner's protected bases.
The Agency filed a Petition for Review and Petitioner filed a cross-petition for review. On April 21, 2015, the MSPB issued a Final Order affirming the initial decision that reversed Petitioner's demotion and found that Petitioner did not present any evidence showing that the Agency's decision was due to any of Petitioner's protected bases.
In regards to Petitioner's claim that she was discriminated against due to her disability, the MSPB found that the Agency provided a legitimate nondiscriminatory reason for finding Petitioner's performance unacceptable and that Petitioner had not shown that the Agency demoted her due to her disabled status.
Additionally, the MSPB determined Petitioner did not show that she was discriminated against based on sex and age because C1 was not similarly situated since he had a differing chain of command and due to the fact that he had volunteered to take a downgrade, while Petitioner had not. They also noted that C1 was older than Petitioner, which undermined Petitioner's claim of age-based disparate treatment. In regards to Petitioner's claim that she was discriminated against in reprisal for prior EEO activity, the MSPB deferred to the AJ's determination that DO made her decision prior to learning of Petitioner's EEO complaint.
Petitioner then filed the instant position. She alleges that the MSPB applied an "overly restrictive" similarly situated analysis and did not consider her evidence of pretext. Petitioner alleges that she established pretext for discrimination when her managers treated her poorly, used derogatory language towards her alone, failed to follow the Agency's policies and due to the fact that no other woman held a K-level position, besides Petitioner.
Petitioner also claims she showed that the Agency officials dissembled about its reason for taking the adverse action. She alleges that the specifications she was charged with were "riddled with inaccuracies." Petitioner also alleges that the MSPB was incorrect in using April 26, 2012 as the date that management learned of her EEO complaint and that they learned on February 1, 2012.
The Agency filed a Response to the Petition for Review on June 11, 2015. Among other things, the Agency asks that we concur with the MSPB final decision finding no discrimination.
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, 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).
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).
Petitioner alleges that the MSPB erred in applying an "overly restrictive" similarly situated analysis. She alleges that one of her former supervisors (FS) was the "initiating force" behind the PIPs issued to her and C1. While FSD testified that FS initiated Petitioner's PIP prior to his transfer to Headquarters, DFSD testified that he made the decision to issue Petitioner a PIP based on his assessment of Petitioner's performance. C1 also testified that he never worked under DFSD and that the former DFSD, who retired, was the one who issued C1's PIP. We agree with the MSBP that Petitioner has not presented any evidence showing that C1, or any other comparator, was similarly situated, outside of her protected bases, but treated more favorably.
However, we will assume, arguendo, that Petitioner had established a prima face case of discrimination based on sex, disability, age and reprisal for prior EEO activity. We concur with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for demoting Petitioner. The Agency demoted Petitioner based upon her performance issues. DO testified in detail how she reviewed the proposal notice, Petitioner's response and all the underlying documents in making her decision. While the MSPB reversed the demotion because the Agency did not provide accurate measurements for Petitioner to improve her performance, 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 that she established pretext for discrimination when her managers treated her poorly, used derogatory language towards her alone, failed to follow the Agency's policies and due to the fact that no other woman held a K-level position, besides Petitioner. However, Petitioner did not provide preponderant evidence of any of these alleged indicators of pretext described above beyond her own assertions.
In support of her allegation that she was discriminated against based on sex, Petitioner provided a witness (W1) who testified that she believed that there was a "good old boys club" and that FSD and DFSD were trying to fire Petitioner. However, W1 also stated that "everyone," both men and women, were fearful of FSD, especially if they had not responded to FSD immediately when he called or emailed. Another witness testified that she had never heard FSD use any demeaning or derogatory language about women.
Petitioner alleges that FSD treated her poorly and used derogatory language against her, and no one else, which shows pretext for discrimination. However, the record shows that Petitioner filed a complaint with the Office of Inspection (OOI) alleging that FSD swears and uses inappropriate language during staff meetings and had yelled and threatened another employee. OOI conducted an investigation and concluded that the allegations that Petitioner made against FSD were false. The fact that Petitioner now claims that FSD used derogatory language against her alone is contradicted by the sworn statement she provided for the OOI investigation.
In her petition, Petitioner alleges that she has presented evidence which called an Agency official's veracity into question claiming that DFSD lied about three of the specifications, items 1, 2 and 3 from above.
1. Petitioner alleges that the specification was patently wrong because she participated in more bridge calls than what was recorded in the spreadsheet.
2. Petitioner alleges that the charge is inaccurate because she acted immediately on the same day of the incident, October 8, 2011. She alleges that during this incident, she demonstrated strong decision-making skills and that the Agency is dissembling in its attempt to demote her.
3. Petitioner alleges that the use of a "single email" sent to an HR Specialist was used to fail the core competency of Communication.
With regards to contention 1, the record indicates that the coordination center manager (CCM) created the spreadsheet and she testified that she made errors in the spreadsheet. However, DFSD testified that when he relied on this data, he had no reason to suspect that the report contained any errors. For contention 2, the record shows that the Agency did not use this incident as an example of decision-making deficiency, but as an example of a communication issue. DFSD testified that FSD emailed Petitioner as soon as he learned about this alleged serious security breach and even if Petitioner acted immediately, she did not respond to FSD until October 10, 2011, two days later. With regards to contention 3, Petitioner is incorrect in claiming that this one email was the only example of her failing the core competency of Communication. The record shows that DO found that five out of the six examples were substantiated in support of the finding that Petitioner did not perform at an acceptable level in the core competency of Communication. Again, the issue was not what Petitioner did, it was that she did not communicate with DFSD or FSD prior to sending this email. While Petitioner alleges that the MSPB erred because it did not conclude that the "falsity of the numerous allegations" give rise to an inference of discrimination, we find that that the MSPB did not err because the record does not show that any Agency official dissembled.
Petitioner alleges that the fact that the Agency did not follow its own policies shows pretext for discrimination. While the MSPB determined that the Agency's performance standard was not sufficient to uphold the demotion, Petitioner has not shown that the Agency's failure to follow its policies was due to any discriminatory or retaliatory animus against her. The Agency argues that while the MSPB found its policies lacking, they were applied to every employee that held Petitioner's position and the record shows that C1 also claimed that the Agency did not follow its own procedures when it issued his PIP.
Petitioner also alleges that the fact that she was the only K-band female employee shows pretext for discrimination. However, the record shows that FSD promoted another female employee, CCM, to the K-band temporarily in May 2012, and then permanently in December 2012.
With respect to her claim of discrimination based on disability, Petitioner alleges that the MSPB erred in not considering other evidence which gives rise to an inference of discrimination. For example, Petitioner alleges that DFSD requested statements from Petitioner's coworkers regarding her emotional distress and that FSD requested a "Personnel Security Assessment of Her" based on her medical condition. However, DO testified that she did not consider any information about Petitioner's disability when making her decision and Petitioner has not presented evidence to the contrary. We agree with the MSPB that Petitioner has not shown that the Agency's action was motivated by, or the result of, her disabled status; that the Agency generally treats disabled employees less favorably or; any incriminating statements to support her allegation of disability discrimination.
Petitioner also alleges that the MSPB was incorrect in using April 26, 2012, as the date that management learned of her EEO complaint and that they actually learned on February 1, 2012. However, the record shows that DFSD issued his proposed demotion on January 5, 2012, prior to February 1, 2012, and that DO did not learn of the EEO complaint until July 10, 2010, when FSD copied her on an email referencing Petitioner's complaint. DO testified that she already decided to demote Petitioner and sent a draft decision in June or July 2012. We find that the MSPB's conclusion that DO was not aware of Petitioner's EEO activity at the time she made her decision 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 reduce her pay band and pay was based on any of these protected bases.
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
_2/23/16_________________
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 The Agency later determined that Accountability is not a core competency, but falls under Supervision.
3 Soon after the meetings, one of Petitioner's former supervisors retired and the other was reassigned to Agency Headquarters. DFSD started acting in the position of DFSD in February or March 2011, until he became permanent in May 2011.
4 The deciding official was the then Deputy Director of Field Operations, working out of Agency headquarters in Washington, D.C. She was promoted to the Director of Field Operations during the time she reviewed and decided Petitioner's action.
5 DO testified that she sent her draft decision letter in late June or July 2012, even though it was not issued to Petitioner until September 2012.
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