Mirta Z.,1 Petitioner,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 11, 2019

2020000566 (E.E.O.C. Dec. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirta Z.,1 Petitioner, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Petition No. 2020000566 MSPB No. SF-0752-19-0079-I-1 DECISION On October 15, 2019, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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. For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not establish that the Agency discriminated against her. BACKGROUND At the time of events giving rise to this matter, Petitioner was a Sergeant First Class in the Oregon National Guard (ORNG) and worked as a dual-status federal technician, Victim Advocate Coordinator, at the Agency’s facility in Salem, Oregon. Petitioner attended a Warfighting Exercise in March 2017 and asked to meet with someone from Behavioral Health. A female National Guard Soldier, who worked as a Behavioral Health Technician (BHT), sat in on the meeting. Petitioner and BHT subsequently became friends. On May 3, 2017, Petitioner completed an Inspector General Action Request asking the Office of Inspector General (IG) to inquire: (1) whether the Oregon National Guard was following the proper procedures regarding “the organization and structure of the state’s Sexual Assault Case Management Group (SACMG) meetings,” (2) about the ORNG Adjutant General of the State of Oregon (TAG) memorandum on “Limitations of Authority,” and (3) why the ORNG did not use the Office of Complex Administrative Investigations (OCI) for sexual-assault incidents. 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. 2020000566 2 Petitioner and BHT spent time together over Memorial Day Weekend in May 2017. BHT stayed at Petitioner’s home overnight, and they slept in the same bed. Petitioner and BHT spoke on the telephone on July 4, 2017. After the conversation, BHT called the sheriff’s office and requested a welfare check on Petitioner. Officers went to Petitioner’s home and called and texted her. Petitioner told them that she was fine, that she was not at home, and that BHT “was a crazy ex- girlfriend and they had a messy breakup.” On July 5, 2017, Petitioner reported to the sheriff’s office that BHT had sexually assaulted her on May 29, 2017. She also filed an unrestricted report of sexual assault with the Agency. On August 11, 2017, BHT filed an unrestricted report of sexual assault with the Agency regarding the May 29, 2017, incident. In a September 8, 2017, memorandum to the Chief Counsel of the National Guard Bureau, the TAG requested an OCI “investigation into the counter sexual assault allegations made between two Oregon National Guard (ORNG) Soldiers.” He stated that the sheriff’s office had told him that it was closing Petitioner’s case in part because Petitioner had not decided whether to pursue criminal charges against BHT.2 On October 4, 2017, Petitioner filed an Inspector General Action Request asking the IG to “investigate retaliation ostracizing, maltreatment, [and] secondary victim blaming” because she filed an unrestricted report of sexual assault. The OCI investigated both parties’ sexual-assault allegations on January 26-29, 2018 and submitted its findings to the Adjutant General on April 18, 2018. The OCI concluded that Petitioner’s report of sexual assault was not substantiated and that BHT’s report of sexual assault was substantiated. In a July 24, 2018, Notice of Proposed Action, the Director of Human Resources (HR Director) proposed to remove Petitioner from her technician position based on a charge of substantiated sexual assault. The HR Director stated that there was “a clear nexus between the substantiated sexual assault and [Petitioner’s] role as a Victim Advocate Coordinator for sexual assault victims.” In response, Petitioner argued that the OCI investigation was flawed and did not consider all information. On September 4, 2018, the Joint Chief of Staff sustained the charge and upheld the removal action. Petitioner appealed the removal action to the TAG. The TAG met with Petitioner and her representatives and, on October 12, 2018, issued a decision upholding the removal. The Agency removed Petitioner from her position, effective October 13, 2018. On November 12, 2018. Petitioner filed a mixed-case appeal alleging that the Agency discriminated against her based on sex (female, sexual orientation) and reprisal for protected EEO activity when it removed her from her Victim Advocate Coordinator position. 2 According to the Sheriff’s Office Incident Reports, the responding officer spoke with Petitioner on July 5, 2017, and asked Petitioner to call him back after she stated that she was sick and could not continue with the interview. Petitioner did not respond to the officer’s subsequent telephone calls and inquiries until August 16, 2017, after he had contacted her chain of command. He notified the Agency on August 17, 2017, that he was closing the case. 2020000566 3 Although Petitioner initially requested a hearing before an MSPB Administrative Judge (AJ), she subsequently withdrew her hearing request. The AJ issued an initial decision affirming the removal. In her decision, the MSPB AJ concluded that the Agency had proven by a preponderance of the evidence that Petitioner “committed the substantiated charge of sexual assault.” The AJ, who stated that she had “no reason to question either woman’s character,” found Petitioner’s version of events to be less credible than BHT’s version. She found that BHT’s statements about the incident were “relatively consistent over time,” that Petitioner’s “version of events changed slightly each time she restated the events at issue,” and that Petitioner’s prior statements in texts “made [BHT’s] version of events more plausible under the circumstances.” Noting that she had reviewed video recordings of the women’s OCI interviews, the AJ found BHT’s “statement to be straightforward, factually detailed, and credible” and Petitioner’s testimony to be “more vague and generalized and lacking specific detail.” The AJ determined that Petitioner did not establish that the Agency discriminated against her based on sex or reprisal. She noted that Petitioner, who stated that “she presents herself in a masculine manner, and is openly gay,” alleged that the Agency discriminated against her “based on her sexual orientation and gender presentation.”3 Petitioner argued that the Agency treated her less favorably than it treated similarly-situated employees. In that regard, Petitioner asserted that BHT, “a female who appears feminine and provides that she is heterosexual,” received more favorable treatment. Petitioner maintained that the Agency “largely ignored” her sexual-assault allegation but promptly investigated BHT’s allegation, treated her as both a victim and a perpetrator but referred to BHT as “the victim,” denied her access to the tools she needed for her job, and detailed her to a different position pending the OCI investigation while permitting BHT to remain in her position. The AJ found that Petitioner and BHT were not similarly situated because Petitioner, not BHT, committed a sexual assault. The AJ concluded that the Agency did not begin an immediate investigation into Petitioner’s sexual-assault allegation because her case was still pending in the sheriff’s office and it is Agency practice to wait until law enforcement conducts its investigation before proceeding with its own processes. The AJ also concluded that the Agency detailed Petitioner out of her position as a Victim Advocate Coordinator because she was part of the Agency’s sexual-assault response team and her duties involved addressing sexual-assault allegations; it appeared that BHT’s position did not involve such duties. Further, assuming that Petitioner’s Inspector General Action Requests constituted protected EEO activity, the AJ found that Petitioner did not prove that her removal was retaliatory. Noting that Petitioner filed her second Request after the Agency had already begun the OCI investigation, the AJ determined that there was “nothing suspicious in the timing of the Agency’s removal decision.” 3 The AJ also noted that there is no MSPB “precedent recognizing an affirmative defense based on sexual-orientation discrimination.” Because she did not find sufficient evidence to support a Title VII violation, the AJ found it unnecessary “to propose such a precedent in this case.” 2020000566 4 The AJ concluded that the Agency based its decision to remove Petitioner “largely on OCI’s findings” and that a preponderance of the evidence supported the OCI determination that Petitioner sexually assaulted BHT. In finding no discrimination on the basis of sex or reprisal, the AJ relied upon the MSPB’s decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB’s authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id. On September 13, 2019, the AJ’s initial decision became the MSPB final decision. Petitioner then filed the instant petition. ARGUMENTS IN PETITION Petitioner, through her attorney, argues that the Agency treated her less favorably than it treated similarly situated employees. She reiterates her contentions that the Agency treated BHT more favorably than it treated her. Further, Petitioner contends that there is a causal connection between her protected EEO activity and her removal because the removal occurred within one year after the activity. She also contends that, “[s]hortly after the IG addressed [the issued raised in her May 3, 2017, Inspector General Action Request,] TAG used a fatally flawed OCI investigation, with a predetermined outcome as the sole basis for [her] removal.” In addition, Petitioner argues that there is new evidence that was not available when she filed her MSPB appeal. She asserts that the Agency removed a former employee “from federal service, both in the civilian and military contexts, after an investigation determined that she had discriminated against lesbian members of the OR National Guard,” that the former employee “had forged the Adjutant General’s signature to force several discharges,” and that “one of the fraudulent discharges may have been” Petitioner’s. In response, the Agency argues that the MSPB AJ correctly ruled that the Agency did not discriminate against Petitioner. The Agency maintains that it did not treat Petitioner differently from the way that it treated a similarly-situated employee. It states that it refers sexual-assault allegations to a law enforcement agency (LEA), that it investigates “only after the LEA declines to do so or determines further investigation is warranted,” and that it followed established procedures in this case. It asserts that Petitioner “knew that an applicable regulation prevented her from performing duties as the Agency’s Victim Advocate Coordinator during a sexual assault investigation that involved her.” In addition, the Agency argues that Petitioner did not establish a causal connection between her prior EEO activity and her removal. Finally, the Agency contends that Petitioner’s claims about the former employee “are patently false” and that Petitioner has not shown that the purported new evidence was not available during the MSPB proceeding. 2020000566 5 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). ANALYSIS AND FINDINGS In Petitioner’s case, we find that the MSPB AJ erred by not applying the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner’s claims of discrimination based on sex and reprisal. We will analyze this case according to the McDonnell Douglas paradigm. See Raphael C. v. Dep’t of Veterans Affairs, EEOC Petition No. 0320160016 (May 10, 2016). We find, however, that the AJ correctly determined that Petitioner did not establish that the Agency discriminated against her as alleged. To prevail in a disparate-treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas. Petitioner must initially establish 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 Construction 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, 411 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 Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanation is unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. We assume, for purposes of analysis only and without so finding, that Petitioner has established prima facie cases of discrimination based on sex and reprisal. The Agency has articulated a legitimate, nondiscriminatory reason for its action. The Agency removed Petitioner because of the substantiated charge of sexual assault. Petitioner has not shown that the articulated reason is a pretext for discrimination. Although Petitioner has argued that the OCI investigation was “fatally flawed,” she has not shown by a preponderance of the evidence that discriminatory animus tainted the investigation. As the AJ noted, the Agency followed its established practice of waiting for the law enforcement agency to close its investigation before conducting its own investigation. 2020000566 6 The Agency detailed Petitioner to a different position pending the investigation because her role as a Victim Advocate Coordinator involved addressing sexual-assault allegations. Further, the preponderance of the evidence establishes that it was the substantiated charge against Petitioner, not her Inspector General Action Requests, that motivated her removal. Finally, assuming the new evidence Petitioner offers on appeal was not readily available prior to the AJ’s determination, Petitioner has presented no evidence to support her allegation that a former employee “may have” discriminated against her by forging documents or otherwise affecting her discharge. We find, therefore that Petitioner has not proven that the Agency discriminated against her on the basis of sex or in reprisal for prior protected EEO activity when it removed her. 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. 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 defense of unlawful 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. 2020000566 7 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 December 11, 2019 Date