0320080085
03-21-2012
Marcus D. Smith, Petitioner, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Marcus D. Smith,
Petitioner,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Petition No. 0320080085
MSPB Nos. AT-0752-05-0901-G-1 & AT-0752-05-0901-I-2
DECISION
On July 5, 2007, 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. In Smith
v. Department of Transportation, EEOC Petition No. 0320070093 (January
3, 2008), the Commission referred the matter back to the MSPB to take
additional evidence. The MSPB was informed that, upon completion,
it should forward the supplemented record to the Commission for review
and a decision on the merits of Petitioner’s discrimination claim.
Subsequently, the MSPB forwarded the supplemental record to the
Commission.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB regarding
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
In light of the comprehensive narrative in EEOC Petition No. 0320070093,
the Commission will incorporate the previous decision by reference and
highlight the material facts.
Petitioner worked as a Management and Program Analyst (Labor Relations
Program Manager) at the Agency’s Administrative Services Branch,
Flight Standards Division in Atlanta, Georgia. On February 14, 2003,
Petitioner filed an EEO complaint alleging that the Agency discriminated
against him when the Manager of the Flight Standards Division (M1) did
not select him for a Supervisory Program Analyst position. The selectee
for the position (S1) became Petitioner’s supervisor.
In connection with his EEO complaint, Petitioner provided information
and documentation to the EEO Investigator and to his attorney that
he believed was relevant to his case. As a result of these actions,
the Deputy Director of the Flight Standards Division (D1) issued
Petitioner a notice of proposed 30-day suspension on April 1, 2005.
The notice stated that Petitioner’s actions violated Human Resource
Policy Manual (HRPM) 4.1 Standards of Conduct which states, in pertinent
part, that “employees shall not divulge any official information
obtained through or in connection with their Government employment to
any unauthorized person … and shall not use any official information
for private purposes which is not available to the general public.” On
July 13, 2005, after receiving Petitioner’s response, D1 decided that
the 30-day suspension was warranted based on the following charges: (1)
unauthorized use of official government information; (2) unauthorized use
of official government documents obtained through government employment;
(3) unauthorized removal and possession of a personal government document;
and (4) misstatement of information for another’s government claim.
Charge 1 consisted of two specifications. Specification 1 stated that
Petitioner verbally provided information about S1’s EEO complaints,
without authorization, to the EEO Investigator and to his attorney.1
Petitioner explained that he obtained the information from an anonymous
letter placed under his office door, copied the information, and
used the information to respond to the EEO Investigator’s questions.
Specification 2 stated that Petitioner verbally provided private official
government information regarding the details of a proposed removal action
involving another employee to the EEO Investigator and to his attorney.2
Petitioner explained that he obtained the information while performing
his Government duties.
Charge 2 stated that Petitioner provided copies of documents that
identified private and personal information about other employees to
the EEO Investigator and to his attorney. The documents included:
(a) Merit Promotion Placement selection lists; and (b) a personal
memorandum addressed to S1, concerning S1’s “Unacceptable Supervisory
Oversight.” Regarding the selection lists, Petitioner explained that
he requested them from a Staffing Specialist for his EEO complaint.
Regarding S1’s memorandum, Petitioner explained that, while acting
for S1, he obtained the memorandum from S1’s desk drawer after being
instructed to look for another document, removed the memorandum, copied
it, and provided it to the EEO Investigator and to his attorney.3
Charge 3 referred to Petitioner’s act of removing and possessing
S1’s memorandum.
Charge 4 involved conflicting statements Petitioner provided as a witness
to an incident involving D1 and another employee (E1). In his first
statement, Petitioner wrote that he was afraid that D1 would attack if he
or E1 moved. In his second statement, Petitioner wrote that at no time
did he feel D1 wanted to fight him or E1. Petitioner’s first statement
was used to support E1’s Office of Workers’ Compensation Programs
(OWCP) claim for work-related emotional stress. Petitioner explained
that he submitted a second statement after he was told that his first
statement would be shared with D1; he was competing for a temporary
promotion in which he would work for D1 and he was afraid of retaliation.
MSPB Decisions
On October 31, 2005, Petitioner filed a mixed-case appeal with the
MSPB alleging that the Agency discriminated against him on the basis
of reprisal for prior protected EEO activity when he was suspended for
30 days. Based on the written record,4 an MSPB Administrative Judge (MSPB
AJ) issued a June 8, 2006, initial decision declining to sustain charges
1-4, reversing the Agency’s action, and finding reprisal discrimination.
Regarding the issue of discrimination, the MSPB AJ initially found
that Petitioner’s act of providing information and documentation
to the EEO Investigator and to his attorney was protected activity.
Moreover, the MSPB AJ found that Petitioner established a prima facie
case of reprisal discrimination. Finally, the MSPB AJ found that the
record evidence did not support a finding that the Agency would have
disciplined Petitioner had he not engaged in the protected activity.
The Agency filed a petition for review with the full Board. On June 5,
2007, the Board granted the Agency’s petition and issued a final order
sustaining the 30-day suspension. The Board reversed the initial decision
with regard to charges 1-3 and the finding of reprisal discrimination.
The Board affirmed the initial decision with regard to charge 4.
In its final order, the Board concluded that the Agency had legitimate
reasons for suspending Petitioner. Specifically, the Board found that
attempts by M1 and S1 to influence D1’s decision were unsuccessful.
In addition, the Board found that D1 had no motive to retaliate against
Petitioner for his filing of an EEO complaint against M1. Further,
the Board found that the evidence of the seriousness of Petitioner’s
misconduct was sufficient to outweigh any motive to retaliate against
Petitioner. Finally, the Board found that there was no genuine nexus
between Petitioner’s EEO activity and the suspension.
EEOC Petition No. 0320070093
On July 5, 2007, Petitioner filed a petition for review with
the Commission, docketed as EEOC Petition No. 0320070093. In EEOC
Petition No. 0320070093, we found that Petitioner established a prima
facie case of reprisal and that the Agency articulated legitimate,
nondiscriminatory reasons for its action. With respect to pretext,
however, we found that “the record was not developed as to whether the
[A]gency would have issued the 30 day suspension absent a retaliatory
motive.” Accordingly, we remanded the matter back to the MSPB for the
taking of additional evidence. We specifically requested the following:
[T]he [A]gency shall provide a copy of HRPM 4.1 Standards of Conduct
and make a determination on what types of discipline other employees
have received for violations of HRPM 4.1 Standards of Conduct or other
similar infractions, focusing on the specific types of discipline and
length of any discipline issued in such cases. The Commission notes
that the comparator’s violations need not be exactly like that of
[P]etitioner. Instead, we require an overview of the types of discipline
normally ordered by the [A]gency. Petitioner may provide evidence of
any comparators he considers relevant to the aforesaid inquiry.
Submissions on Remand5
On remand, the Agency submitted a copy of the HRPM 4.1 Standards of
Conduct and documentation concerning two employees – C1 and C2.
The documentation reflected that the Agency disciplined C1 and C2 for
disclosing information in the course of prosecuting their EEO complaints:
(a) in 2001, the Agency suspended for 30 days and reassigned C1 based
on a charge of unauthorized possession of government documents; and
(b) in 2005, the Agency removed C2 based on a charge of unauthorized
disclosure of Privacy Act information. The Agency argued that the
documentation showed that it treated Petitioner in accordance with
similarly-situated employees.
On remand, Petitioner submitted documentation concerning M1. Petitioner
argued that the Agency did not discipline M1, who had not engaged in
prior protected EEO activity, for similar violations of HRPM 4.1
In response to the Agency’s submission, Petitioner asserted that
the documentation revealed that the Agency only disciplined employees
for alleged violations of HRPM 4.1 when the employee had engaged in
protected activity. Petitioner also asserted that, according to the
Agency, C1 and C2 were the only two individuals (among thousands of
employees) who were disciplined for alleged HRPM 4.1 violations.
In response to Petitioner’s submission, the Agency asserted, among
other things, that it confined its comparator evidence to what D1 actually
reviewed and considered in suspending Petitioner. The Agency explained
that this was pursuant to the Commission’s narrow order requesting
comparator evidence for the instant case. In addition, the Agency
asserted that it would be “unfair” for the Agency in 2008 to canvass
its multiple offices to search for all violations of a broad regulation
such as HRPM 4.1 and then use those instances as comparator evidence
for Petitioner’s 2005 discipline. Further, the Agency asserted that
Petitioner was aware of other disciplinary cases for the unauthorized
disclosure of government information and/or documents in violation of
HRPM 4.1, which did not involve the prosecution of an EEO complaint.
The Agency stated that the report of investigation (ROI) in another
EEO complaint filed by Petitioner included copies of those disciplinary
letters. The Agency explained that it did not include those cases in
its submission because they did not involve employees who were violating
HRPM 4.1 to prosecute an EEO complaint and were not shown to D1.
ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission has jurisdiction over
mixed-case appeals in 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 regarding the allegation of discrimination constitutes a
correct interpretation of an applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
To prevail in a disparate treatment claim such as this, Petitioner
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Petitioner carries the initial burden of establishing a prima facie case
by demonstrating that he was subjected to an adverse employment action
under circumstances that would support an inference of discrimination.
Furnco Constr. Corp. 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, 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).
In EEOC Petition No. 0320070093, the Commission already found that
Petitioner established his prima facie case of reprisal discrimination
and that the Agency articulated legitimate, nondiscriminatory reasons for
its action. Therefore, we shall proceed directly to the ultimate issue
of whether Petitioner has shown, by a preponderance of the evidence,
that the Agency’s actions were motivated by retaliation.
Pretext
In retaliation cases, one typical way to prove pretext is through
evidence that the agency treated the petitioner differently from
similarly situated employees. See EEOC Compliance Manual Section 8,
“Retaliation,” Notice No. 915.003, at 8-17 (May 20, 1998). When the
treatment involves disciplining an employee, we therefore examine the
record to determine whether the agency enforced its disciplinary rules and
policies in an evenhanded manner. See EEOC Compliance Manual Section 15,
“Race and Color Discrimination,” Notice No. 915.003, at § VII.B.7
(Apr. 19, 2006); EEOC Compliance Manual Section 13, “National Origin
Discrimination,” Notice No. 915.003, at § III.C.1. (Dec. 2, 2002).
The purpose of remanding this matter back to the Agency was to supplement
the record, which was devoid of comparative treatment evidence.
We instructed the Agency to provide evidence of how it disciplined other
employees who violated HRPM 4.1 by improperly disclosing government
information. We needed to determine whether the Agency issued the same
harsh disciplinary actions (such as 30-day suspensions or removals)
to those who had not engaged in prior protected EEO activity as it did
to Petitioner and others who had engaged in such activity.
The Agency elected not to provide this information to the Commission,
stating that it was “unfair” to canvass its offices to search for
violations of HRPM 4.1. The Agency was apparently aware of existing,
relevant comparative treatment evidence that it had previously compiled
for another report of investigation involving Petitioner, yet it failed
to provide this evidence to the Commission.
Instead, the Agency merely asserted, without proof, that it had
disciplined employees for similar violations that did not occur in the
EEO process. The Agency provided no further information about those
cases, such as the specific type of discipline or the length of the
discipline imposed. The information the Agency provided only shows
that the Agency had subjected two employees, who had engaged in prior
protected EEO activity, to similar discipline as Petitioner.
We find that the Agency did not comply with our explicit order to
produce comparative treatment evidence showing the types of discipline
other employees have received for similar infractions. Therefore, we
exercise our discretion to sanction the Agency for its noncompliance,
drawing an adverse inference that the requested comparative evidence
would have reflected unfavorably on the Agency by showing that the
Agency disciplined employees for unauthorized disclosure of government
information more harshly when such disclosure occurred in the EEO process.
See 29 C.F.R. § 1614.404(c)(1).
We find that drawing such an adverse inference against the Agency is
sufficient to establish pretext for Petitioner’s retaliation claim.
We note that the Agency characterized Petitioner’s actions as
unauthorized use of official government information and documents.
The Agency, despite our remand order, failed to provide any evidence of
non-EEO uses it considers unauthorized. The only evidence in the record
reflects that the Agency considers the disclosure of such information and
documents in the EEO process, to an EEO Investigator and to an attorney,
to be unauthorized.
Accordingly, the Commission finds that the Agency discriminated against
Petitioner on the basis of reprisal for prior protected EEO activity
when it issued him a 30-day suspension. We therefore differ with the
MSBP regarding its determination that the Agency’s sctions did not
constitute reprisal discrimination. As such, with this finding of
reprisal discrimination, we return this case to the MSPB to consider
all remedies appropriate with such a finding under Title VII.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the
Commission to DIFFER with the final decision of the MSPB finding no
reprisal discrimination. The Commission finds that the MSPB’s decision
constitutes an incorrect interpretation of the laws, rules, regulations,
and policies governing this matter and is not supported by the evidence
in the record, including the supplemental record, as a whole.
PETITIONER’S RIGHT TO FILE A CIVIL ACTION (V0610)
Your case is being referred back to the Merit Systems Protection Board
for further consideration and the issuance of a new decision. You will
have the right to file a civil action in the appropriate United States
District Court, based on the new decision of the Board:
1. Within thirty (30) calendar days of the date that you receive
notice of the decision of the Board to concur in this decision of the
Commission; or,
2. If the Board decides to reaffirm its original decision, within
thirty (30) calendar days of the date you receive notice of the final
decision of the Special Panel to which your case will then be referred.
You may also file a civil action if you have not received a final
decision from either the Merit Systems Protection Board or the Special
Panel within one hundred and eighty (180) days of the date you filed this
Petition for Review with the Commission. 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
____3/21/12______________
Date
1 Petitioner believed that the information was relevant to his EEO
complaint because S1 identified his race as White in his EEO complaints,
but identified his race as Native American when he applied for the
Supervisory Program Analyst position.
2 Petitioner believed that the information was relevant to his EEO
complaint because he wanted to suggest a comparable punishment for
alleged misconduct by S1.
3 Petitioner believed that the document was relevant to his EEO
complaint because the Agency asserted that he was not selected due to
“unacceptable supervisory oversight.”
4 Petitioner requested a hearing but subsequently withdrew his request.
5 The MSPB AJ issued an order granting the parties permission to reply
to the submissions.
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