0320160044
08-02-2016
Gwendolyn G.,1 Petitioner, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gwendolyn G.,1
Petitioner,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Petition No. 0320160044
MSPB No. DC-0432-13-6414-I-2
DECISION
On May 23, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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 ultimate finding of no discrimination.
ISSUE PRESENTED
The issue presented is whether the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish her affirmative defenses of unlawful discrimination on the bases of race (African-American) or reprisal for prior protected EEO activity (EEO complaints filed in April 2011, November 2011, late 2012, and May 2013) in connection with her demotion.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Supervisory Strategic Planning Specialist, GS-0301-14, at the Agency's Joint Base Myer-Henderson Hall (JBM-HH) in Fort Myer, Virginia. Petitioner was the Director of the Plans, Analysis, and Integration Office (PAIO). Petitioner's supervisory chain of command included the Deputy Joint Base Commander (S1 - Caucasian) and the Joint Base Commander (S2 - African-American).
In February 2013, S1 issued Petitioner a notice of proposed removal on the charge of unacceptable performance. Specifically, S1 stated that Petitioner, despite being placed on a performance improvement plan (PIP) in September 2012, did not improve to an acceptable level of performance in the following critical elements: (1) organizational management and leadership; (2) technical competence; and (3) communications and teamwork. For each critical element, S1 described the performance standard and provided examples of Petitioner's unacceptable performance during the PIP period.
Regarding critical element (1), S1 cited the following examples of Petitioner's unacceptable performance: (a) the PIP required her to maintain all PAIO work products on shared drives, but she did not do so and key documents stored only on her subordinate's computer were lost on November 5, 2012; (b) the PIP required her to complete annual appraisals, individual development plans, and support forms for her assigned personnel within 30 days after the commencement of the PIP, but she did not do so in a timely and error-free manner for two of her assigned personnel; (c) the PIP required her to prepare and present two 30-minute professional leadership training classes to directors and chiefs on certain topics (the supervisor's required steps for employee performance counseling, the different types of leave for an employee, the type of documentation required for time and attendance to be accurately certified), but the two classes she presented did not last 30 minutes together and did not adequately address the topics; and (d) the PIP required her to submit an audit of PAIO staff's leave requests and time and attendance certification with an acceptable level of one error per audit, but she did not do so in a timely manner or with an acceptable level of errors.
Regarding critical element (2), S1 cited the following examples of Petitioner's unacceptable performance: (a) on November 3, 2012, S2 emailed her advising that she needed to spell check her work before submitting it ; (b) on November 19, 2012, she provided S2 with briefs and slide presentations, but one of the briefs did not match the slide presentation; (c) on October 30, 2012, S2 directed that she present certain slides during the staff call on November 6, 2012, but she had not completed the task as of February 1, 2013; and (d) two documents under the responsibility of PAIO (the installation fact sheet, the event planning checklist) were not professional or quality products.
Regarding critical element (3), S1 cited the following examples of Petitioner's unacceptable performance: (a) she did not comply with S2's weekly updates as required; (b) the PIP required her to submit to S1 a weekly significant activity report every Thursday detailing the projects ongoing in PAIO along with supporting information about tasking suspenses assigned to PAIO, but she did not do so; and (c) she did not note the tasking suspense dates on an Outlook calendar available to all PAIO staff as required.
In August 2013, S2 issued Petitioner a notice of decision on the proposed removal. Specifically, S2 found that Petitioner did not perform at an acceptable level, but concluded that the efficiency of the Federal service would be best served by demoting her and reassigning her to the position of Program and Management Analyst, GS-0343-12, a non-supervisory position in PAIO.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity (EEO complaints filed in April 2011, November 2011, late 2012, and May 2013) when it demoted her.
On March 25, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision on the appeal. The MSPB AJ reversed the Agency's demotion action,2 but found that Petitioner did not establish her affirmative defenses of unlawful discrimination on the bases of race or reprisal.
Regarding the demotion, the MSPB AJ found that the Agency violated Petitioner's procedural due process rights because it did not give her an opportunity to review and respond to ex parte information (i.e., new information not contained in the notice of proposed removal) that S2 obtained and relied on in demoting her. Specifically, the MSPB AJ credited S2's testimony that she independently researched Petitioner's employment background and discovered that Petitioner had quickly progressed from non-supervisory, non-PAIO positions to the GS-14 supervisory PAIO position without having held any lower-graded PAIO positions. In addition, the MSPB AJ credited S2's testimony that she felt the quick progression explained Petitioner's shortcomings in the GS-14 supervisory PAIO position and influenced her belief that Petitioner did not have the skill set for the GS-14 supervisory PAIO position.
Regarding the unacceptable performance charge, the MSPB AJ found that it was not sustained because the performance standards by which the Agency judged Petitioner's performance during the PIP period were invalid. Specifically, the MSPB AJ found that the performance standards did not provide any measure to evaluate Petitioner's performance and simply listed, in vague terms, the tasks that she had to perform. The MSPB AJ cited the following examples from the performance standards: "leads by example;" "exhibits technical knowledge, skills, and abilities to get desired results within established time frames and with the appropriate level of supervision;" "sets and meets realistic milestones;" "performs a full range of assignments, including complex work activities;" and "exhibits a courteous and cooperative attitude."
Regarding discrimination, the MSPB AJ applied the analytical framework set forth in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), and found that Petitioner did not show that her race or prior protected EEO activity was a motivating factor in her demotion.
The MSPB AJ noted Petitioner's assertion that S1's treatment of her from September 2011 to February 2013, including four attempts to remove her during that time period, was indicative of S1's racial and retaliatory animus against her. Specifically, the MSPB AJ recounted Petitioner's testimony that: (i) in October 2011, S1 issued her a notice of proposed removal for failure to obtain a security clearance; (ii) in November 2011, S1 made negative comments on her security clearance form about her performance and behavior; (iii) in February 2013, S1 issued her a notice of proposed removal for unacceptable performance; and (iv) in February 2013, S1 issued her a notice of proposed removal for failure to follow instructions, submitting false information, misuse of sick leave, discourtesy, and failure to observe written regulations. In addition, the MSPB AJ recounted Petitioner's testimony that S1: sent her an email with a harassing tone; spoke to her former first-level supervisor (FS1) about her and told her she (S1) intended to take up where FS1 left off;3 referred to her, and only her, in staff meetings by her last name; questioned her relationship with her fianc�; issued her a letter of reprimand; told her she was not qualified for the position, was a terrible supervisor, and lacked leadership skills; issued her a notice of proposed suspension; delayed giving her permission to attend a retirement luncheon; permitted her subordinate to transfer away from the understaffed PAIO office; placed her on leave restriction; and was rude to her.
The MSPB AJ characterized S1's actions against Petitioner as "swift," "startling," and "inflammatory," but found that Petitioner did not prove that S1's decision to issue her a notice of proposed removal in February 2013 was motivated by discrimination. Regarding the basis of race, the MSPB AJ found that Petitioner did not show that S1 treated her differently than similarly situated employees. Specifically, the MSPB AJ found that Petitioner did not show that S1 treated her differently than Caucasian directors who had performance problems. In addition, the MSPB AJ found that, although S1 proposed discipline against two other African-American directors, they were not similarly situated because they had misconduct problems rather than performance problems. Regarding the basis of reprisal, the MSPB AJ found that the timing of Petitioner's EEO complaints suggested that her proposed removal could have been retaliatory, but that, absent more, timing alone did not prove that her EEO complaints were a motivating factor.
Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner contends that the MSPB erred in finding no discrimination. Among other things, Petitioner argues that S1 falsely accused her of poor performance. As evidence of S1's alleged false accusation, Petitioner cites the MSPB's determination that her performance standards were invalid and S1's inability, at the hearing, to recall specific examples of some of her performance deficiencies listed in the September 2012 PIP letter. In addition, Petitioner argues that S1's treatment of her from September 2011 to February 2013, characterized by the MSPB as "swift," "startling," and "inflammatory," was evidence of S1's discriminatory motivation. Finally, Petitioner argues that S1's proposed discipline against two other African-American directors was evidence of her racial attitudes against African-Americans.
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
Here, we find that the MSPB erred by not applying the analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in deciding Petitioner's discrimination claims; therefore, we will analyze this case in according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish her affirmative defenses of unlawful discrimination on the bases of race or reprisal for prior protected EEO activity in connection with her demotion.
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. A petitioner carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Petitioner established a prima facie case on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for proposing her removal (which ultimately led to her demotion); namely, Petitioner's unacceptable performance during the PIP period, as described in the February 2013 notice of proposed removal.
Moreover, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for race or reprisal discrimination. First, Petitioner did not show that S1 falsely accused her of poor performance. Although the MSPB determined that Petitioner's performance standards were invalid under civil service law, we find that such a determination is not evidence that S1 did not sincerely believe Complainant had performance problems during the PIP period. Although S1, at the hearing, was unable to recall specific examples of some of Petitioner's performance deficiencies listed in the September 2012 PIP letter, we note that S1, in the February 2013 notice of proposed removal, cited specific examples of Petitioner's performance deficiencies during the PIP period. Petitioner, however, did not demonstrate in her petition that the specific examples cited in the February 2013 notice of proposed removal were inaccurate. Second, Petitioner did not show that S1 held any racial or retaliatory animus against her. Although the MSPB AJ characterized S1's treatment of Petitioner from September 2011 to February 2013 as "swift," "startling," and "inflammatory," we emphasize that the MSPB AJ, after listening to and observing testimony from Petitioner and S1 about the time period at issue, did not characterize it as discriminatory. Although S1 proposed discipline against two other African-American directors, we find that no evidence that the proposed discipline in those instances was driven by racial animus.
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 race or reprisal 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 defenses of unlawful race or reprisal 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
_8/2/16_________________
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 MSPB AJ ordered the Agency to cancel Petitioner's demotion and retroactively restore her to the position of Supervisory Strategic Planning Specialist, GS-0301-14, with back pay.
3 Petitioner had filed an EEO complaint against FS1 in April 2011. The MSPB AJ noted Petitioner's testimony that she interpreted S1's statement to mean that S1 intended to continue FS1's harsh treatment of her.
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