03A10045
10-17-2001
Patricia Wright, Petitioner, v. Elaine Chao, Secretary, Department of Labor, Agency.
Patricia Wright v. Department of Labor
03A10045
October 17, 2001
.
Patricia Wright,
Petitioner,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 03A10045
Agency No. CH-0432-98-0134-B-1
DECISION
Patricia Wright (petitioner) filed a petition with the Equal Employment
Opportunity Commission (the Commission) for review of the Final Order
of the Merit Systems Protection Board (MSPB) concerning allegations
of discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The petition is governed by the
provisions of the Civil Service Reform Act of 1978 and EEOC Regulations,
29 C.F.R. �1614.303 et seq. The MSPB found that the Department of Labor
(agency) had not engaged in discrimination as alleged by petitioner.
For the reasons that follow, the Commission concurs with the decision
of the MSPB.
The record indicates that petitioner was removed from her position as a
GS-11 Workers' Compensation Claims Examiner with the agency's Employment
Standards Administration, effective October 3, 1997. The agency stated
that petitioner was removed from her position due to unacceptable
performance. Petitioner filed an appeal of her removal to the MSPB,
asserting that she was treated differently than other employees because
of her race (Black), age (D.O.B. 2/11/56) and disability (sarcoidosis).
Following a hearing, the MSPB Administrative Judge (AJ) issued an
initial decision upholding the agency's decision to remove petitioner.
The AJ found that the agency's decision to remove petitioner was based
on unacceptable performance, and that the agency had afforded petitioner
a reasonable opportunity to demonstrate acceptable performance. The AJ
further found that petitioner failed to establish that the agency's action
constituted disability discrimination, as she failed to demonstrate that
she had an impairment which substantially limited a major life activity.
Subsequently, petitioner appealed the AJ's initial decision to the MSPB,
which granted petitioner's petition for review and affirmed the initial
decision in part, but remanded the claim to the AJ for a hearing on the
petitioner's affirmative defenses. In so finding, the MSPB noted that
the AJ improperly precluded the petitioner from presenting evidence to
show that her performance standards were not reasonably achievable during
the period she was placed on a Performance Improvement Plan (PIP) by the
agency.<1> As a result, the MSPB found that on remand petitioner must
be permitted to adduce testimony and documentary evidence on whether
her performance standards were reasonably achievable during the PIP.
See Wright v. Dept. of Labor, M.S.P.R. 186, 188, 193-94 (1999).
On remand, the MSPB AJ held a hearing on July 21, 1999. In his initial
decision on remand, the AJ reviewed petitioner's contentions that her
performance standards during the PIP were not reasonably achievable.
The AJ considered all of the evidence of record as well as the testimony
adduced at the hearing and found that the petitioner failed to establish
that her performance standards were not reasonably achievable during
the Performance Improvement Plan (PIP) period. In so finding, the
AJ noted that the agency had proven by substantial evidence that: (1)
the Office of Personnel Management had approved the agency's performance
appraisal system; (2) the agency made petitioner aware of her performance
standards; (3) petitioner was notified of her unacceptable performance;
and (4) petitioner was given a reasonable opportunity to improve. The AJ
found that the petitioner failed to establish that the agency's action
constituted age or race discrimination. Finally, the AJ again found that
petitioner failed to establish that the agency's action constitutes
disability discrimination. In addition, as the AJ found that as the
petitioner failed to establish that the agency committed prejudicial
error, the petitioner's separation from her position was affirmed.
On petitioner's petition for review, the MSPB found that the AJ made
no error in law or regulation which affected the outcome of the case,
and as such denied the petition. Subsequently, the petitioner requested
that the Commission review the final decision of the MSPB.
The Commission must determine whether the decision of the Board with
respect to the allegations of discrimination based on age, race and
disability 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).
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance
to his or her allegation. Petitioner's claim of disparate treatment is
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973). In general, for
petitioner to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867, 875 (1984). This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).
The Commission's analysis need not focus on the establishment of
the prima facie case where the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Washington, v. Dept. of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that assuming that petitioner established a prima
facie case of age, race or disability discrimination, the Commission finds
that the agency has articulated legitimate, nondiscriminatory reasons
for its actions in terminating petitioner following her PIP period.
The record indicates that although petitioner was given the opportunity
to improve her performance during the PIP period by taking immediate
action on several of her payable compensation claims and TCUPS<2> cases
which were overdue when the PIP period began, petitioner failed to do
so. Petitioner's arguments that she could not live up to the terms of the
PIP and that the agency required her to perform duties other than case
adjudication during the PIP are unsupported by the evidence of record.
A review of the record shows that petitioner's supervisor lowered the
performance standards of petitioner's position for the PIP to increase
the likelihood of her success. Agency File, Tab 4hh. In addition,
while petitioner stated that there were many interruptions during her
PIP, as noted by the AJ, petitioner failed to introduce convincing
evidence that any such interruptions caused her to fail to meet the
minimum standards of the PIP. Regarding petitioner's claim of disability
discrimination, the Commission finds that the record does not support
a finding that there is a nexus between petitioner's medical condition
and her poor performance. As the AJ pointed out, in discussing the
PIP standards with her supervisor, petitioner did not state that her
condition had caused her performance deficiencies. Agency File, Tabs 4f
and 4fff. After consideration of the record and the hearing testimony,
the Commission finds that petitioner has not shown that the agency's
reasons for its action were a pretext for discrimination.
Based on the foregoing, the Commission concurs with the Board's finding
that petitioner's removal was not the result of unlawful discrimination.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board'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.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 17, 2001
__________________
Date
1 The MSPB found that as petitioner had stipulated that her performance
was unacceptable, she was precluded from arguing on remand that her
performance had been acceptable.
2 As noted by the AJ, the record does not contain a definition for
this acronym.