0320110043
12-22-2011
Jodi E. Silberman, Petitioner, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Jodi E. Silberman,
Petitioner,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Petition No. 0320110043
MSPB No. CH0752090322I2
DECISION
On August 11, 2011, 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.
ISSUE PRESENTED
The issue presented is whether the MSPB’s final decision with respect
to Petitioner’s allegation of reprisal 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.
BACKGROUND
At the time of events giving rise to her appeal, Petitioner worked as an
Equal Opportunity Specialist with the Department of Labor in Chicago,
Illinois. On December 14, 2007, Petitioner interrupted a conversation
between A1, the Assistant District Director, who was her supervisor, and
C1, a co-worker. Petitioner allegedly pointed a finger in A1’s face,
and repeatedly called her and the District Director (A2) a liar in a loud
voice (Specification I). According to A1, because of Petitioner’s
actions, she lost focus in her conversation with C1. C1 confirmed
that Petitioner called A1 a liar. C2, an Equal Opportunity Assistant,
also witnessed the incident. C2 described Petitioner as being loud and
confrontational. She also testified that Petitioner repeatedly called
A1 a liar and stated that her conduct was disruptive. Petitioner did
not testify at the hearing. In her response, she noted that C1 and C2
did not state that she pointed her finger at A1’s face.
On January 8, 2008, A1 was conducting a case update meeting.
According to the Agency, Petitioner loudly interrupted A1’s comments
about a particular case by asking A1 where she got her law degree
(Specification II). Petitioner also allegedly stated, “I know you
are not an attorney [and] that is why you don’t know anything.”
A1 maintained that Petitioner’s actions undermined her supervisory
authority. C3 testified that Petitioner was loud, disruptive and told A1
she did not know anything. C4 testified that Petitioner became agitated
during the meeting and her actions were disruptive. C5 testified that
she heard Petitioner tell A1 that she did not know anything. She also
described Petitioner’s actions as being disruptive.
Effective February 1, 2009, the Agency suspended Petitioner for 30
days. In her appeal to the MSPB, Petitioner maintained that the Agency’s
actions were in reprisal for her EEO activities and for whistle blowing.
On December 29, 2009, after a hearing held on December 9 and 10, an
MSPB Administrative Judge (MSBPAJ) issued an initial decision upholding
the Agency’s action and finding no discrimination. The MSPBAJ,
in finding support for the two specifications, found that the Agency
properly charged Petitioner with “unprofessional behavior,” and
sustained the disciplinary action.
With respect to Petitioner’s claim of discrimination based on
retaliation for engaging in protected EEO activity, the MSPBAJ noted that
both A1, the proposing official, and A2, the deciding official, stated
they were aware that Petitioner had engaged in prior EEO activity but
that their actions were not taken in retaliation. The MSPBAJ, among other
things, found that the record did not suggest the Agency’s action was
pretextual. In reaching this conclusion, the MSPBAJ found that the Agency
presented a compelling basis for its action because of Petitioner’s
“rude, insulting and disruptive conduct.” The MSPBAJ also found
that Petitioner did not prove that a similarly-situated comparator
existed.1 A1 testified that she previously disciplined other employees by
reprimanding them for disruptive behavior, but, unlike Petitioner, these
employees expressed remorse for their conduct and the conduct stopped.
Thus, the MSPBAJ concluded that “there is also no evidence from which
an inference of retaliatory intent might be drawn nor does any evidence
suggest the Agency’s action was pretextual in nature.”
Petitioner filed a petition for review by the full Board. On June 24,
2011, the Board issued its final order. Although the Board affirmed the
initial decision regarding Petitioner’s discrimination claim, it found
that the 30-day suspension could not be sustained because Petitioner’s
due process rights were violated. Consequently, the Agency was ordered
to rescind the 30-day suspension.
Petitioner filed the instant petition with the Commission. Among other
things, she argued that her affirmative defense of retaliation for
engaging in protected EEO activity “was not allowed to be presented at
[her] MSPB hearing. According to Petitioner, she was only allowed to
present an EEO complaint form to establish her prior EEO activity, but
was not allowed to present any other evidence or testimony. Petitioner
further noted that both A1 and A2 were the officials responsible for
her prior EEO complaint and that a subsequent settlement resulted in
her receiving $17,500.
ANALYSIS AND FINDINGS
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.
Upon review of the record, we concur with the MSPB’s decision that
Petitioner did not establish that the Agency’s reason for issuing her
a 30-day suspension was due to her prior EEO activity. With respect
to the Petitioner’s contention that the MSPBAJ would not allow her
to provide evidence or testimony about the details of her prior EEO
complaint, we first note that the Commission has no jurisdiction over
procedural determinations made by the Board, e.g., what evidence to
allow at a hearing. We find that Petitioner established a prima facie
case of reprisal, however, we find that the MSPBAJ correctly determined
that she did not establish that the Agency’s reasons for suspending her
were pretextual. As noted by the MSPBAJ, Petitioner did not prove that
a similarly-situated comparator, i.e., someone who engaged in similar
conduct but was not punished, existed. A1 testified that she previously
disciplined other employees by reprimanding them for disruptive behavior,
but, unlike Petitioner, these employees expressed remorse for their
conduct and the conduct stopped. Although Petitioner stated that her
suspension was retaliatory, she provided no evidence other then the fact
that A1 and A2 were involved in her prior EEO complaint. Finally, we note
that the fact that her prior EEO complaint resulted in a settlement is
not evidence that the Petitioner was discriminated against either in the
prior complaint or with regard to her present suspension. We note in this
regard that parties often resolve EEO complaints without an admission
of liability. Accordingly, we conclude that the MSPB correctly held
that Petitioner failed to show that her suspension constituted reprisal
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 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_12/22/11_________________
Date
1 We note, however, that it is not necessary for a complainant to strictly
rely on comparator evidence to establish an inference that an agency was
motivated by unlawful discrimination. See Harris v. U.S. Postal Serv.,
EEOC Appeal No. 0120092438 (Feb. 4, 2011).
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0320110043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110043