Monica Thomas, Petitioner,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionJan 27, 2009
0320090010 (E.E.O.C. Jan. 27, 2009)

0320090010

01-27-2009

Monica Thomas, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Monica Thomas,

Petitioner,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Petition No. 0320090010

MSPB No. PH0752080041I1

DECISION

On December 11, 2008, 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.

Petitioner alleged that she was discriminated against on the bases of

race (race unspecified), sex (female), religion (religion unspecified),

and reprisal for prior protected EEO activity under a statute that was

unspecified in the record when petitioner was removed from her position

as Transportation Security Manager (TSM), effective October 2, 2007.

A hearing was held and thereafter an MSPB Administrative Judge (AJ)

issued an initial decision finding no discrimination. Petitioner sought

review by the full Board and in a decision dated October 7, 2008, the

Board denied petitioner's petition. Petitioner then filed the instant

petition.

The record reveals that in 2007, the agency required that all TSMs be

subject to the Performance Accountability and Standards System (PASS),

which in part required them to take quizzes on the agency's Standard

Operating Procedures (SOP). The record further reveals that under

PASS, any TSM who failed to achieve a score of 80% on the SOP quiz was

required to retake the quiz and also undergo remedial classroom Basic

Screener Training. TSMs were required to successfully complete the

classroom training and score 80% or higher upon retaking the SOP quiz

or they would receive a rating of "Does Not Meet Standards" and could

be removed for poor performance. Petitioner did not achieve the 80%

score on her first attempt and underwent Basic Screener Training, which

she completed successfully. Petitioner then retook the SOP quiz but

again failed to score above 80%.

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).

Petitioner argues that she was discriminated against because other

similarly situated coworkers outside of her protected bases were treated

differently. Specifically, she contends that two comparators also failed

the SOP quizzes but were not removed. The MSPB AJ found that the agency

articulated a legitimate, nondiscriminatory reason for the difference in

treatment. Regarding the first comparator, the AJ noted that he failed

the SOP quiz prior to the implementation of PASS and also he accepted

a voluntary demotion as part of a settlement agreement with the agency.

Regarding the second comparator, she had applied for a lateral transfer

to another position prior to failing the SOP quiz and had made the "best

qualified" list. Upon failing the SOP quiz, she was reassigned to the

other position. Petitioner, however, failed the SOP quiz after PASS

came into effect, and she had not applied, and made the "best qualified"

list, for another position prior to failing the SOP quiz. The AJ further

found that petitioner failed to meet her burden of establishing, by a

preponderance of the evidence, that the agency's articulated reason was

a pretext for discrimination.

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 (W0408)

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 (Z1008)

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

January 27, 2009

__________________

Date

2

0320090010

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013