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