0320170016
02-14-2017
Raquel T.,1 Petitioner, v. John F. Kelly, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raquel T.,1
Petitioner,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Petition No. 0320170016
MSPB No. SF0432160146I1
DECISION
On November 17, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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 finding that Petitioner did not establish that the Agency discriminated against her as alleged.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's ultimate finding that Petitioner did not establish that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity (March 2014 and ongoing) when it removed her, despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a GS-13 Equal Employment Opportunity (EEO) Manager with the Agency's Civil Rights Division in Alameda, California. On May 8, 2015, management rated Petitioner's performance at the "fails to meet" level in the core competency of "quality of work." On May 18, 2015, management issued Petitioner a notice of unsatisfactory performance, informed her that she had failed to meet the minimum standards for the core competency, and placed her on a 90-day performance improvement plan (PIP). On September 21, 2015, following the conclusion of the PIP period, management issued Petitioner a notice of proposed removal for unacceptable performance. On November 13, 2015, management issued Petitioner a decision to remove her, effective immediately.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when it removed her. On September 14, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no discrimination, and affirming Petitioner's removal.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency proved by substantial evidence that Petitioner's performance in the core competency was unacceptable during the PIP period. Citing documentary and testimonial evidence, the MSPB AJ found five examples of how Petitioner failed to meet the core competency: (1) on May 20, 2015, she did not recognize the need to amend a settlement agreement where the parties had substantially modified a term of their agreement without formally amending the agreement to reflect the change; (2) on June 17, 2015, she submitted a counseling report that did not contain accurate data (names, dates, events) and required multiple revisions; (3) on June 30, 2015, she submitted a counseling plan that did not include the timeframe for interviewing the parties or witnesses, did not identify specific pertinent questions and areas of inquiry, and did not contain accurate event dates; (4) on July 14, 2015, she submitted a supplemental counseling report for a performance appraisal claim that did not specify the appraisal period and was not in the proper format; and (5) on July 28, 2015, she unnecessarily disclosed the identity of a complainant through email, thereby violating the complainant's privacy rights and exposing the Agency to liability.
In finding no discrimination, the MSPB 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, 802-04 (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.
In Petitioner's case, the MSPB AJ found that Petitioner did not prove that her prior protected EEO activity (March 2014 and ongoing) was a motivating factor in her removal. Specifically, the MSPB AJ cited Petitioner's own testimony that management viewed her work with disfavor from the time they first worked together, which pre-dated her protected EEO activity. In addition, although Petitioner asserted that a GS-7 EEO Specialist could corroborate her assertion that management held her to a higher standard than EEO Managers who had not engaged in protected EEO activity, the MSPB AJ found that there was nothing in the GS-7 EEO Specialist's testimony to show that management treated her differently than similarly situated employees who had not engaged in protected EEO activity.2 Moreover, the MSPB AJ found that management credibly testified that it was not upset about Petitioner's protected EEO activity and that the protected EEO activity played no role in its actions. In so finding, the MSPB AJ noted that she credited management's testimony based on her observations of management's testimony, the detailed and consistent nature of management's testimony, and the fact that nothing in the GS-7 EEO Specialist's testimony contradicted management's testimony.
On October 19, 2016, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In her petition, Petitioner contends that the MSPB erred in finding no discrimination. Among other things, Petitioner argues that the MSPB did not properly analyze her discrimination claim pursuant to the appropriate legal standard. In addition, Petitioner argues that management was aware of her March 2014 protected EEO activity and that it removed her while the protected EEO activity was pending. Moreover, Petitioner argues that the MSPB should not have merely accepted management's self-serving testimony that it was not upset about her protected EEO activity.
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 McDonnell Douglas analysis in deciding Petitioner's claim of reprisal discrimination when the Agency removed her; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her as alleged.
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. A petitioner carries the initial burden of establishing 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 Constr. Co. 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, the 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).
Upon review of the record, we find that Petitioner did not show that the Agency subjected her to disparate treatment on the basis of reprisal. First, assuming, arguendo, that Petitioner established a prima facie case on the basis of reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing her; namely, her unacceptable performance in the core competency of "quality of work" during the PIP period. Second, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for reprisal. Although Petitioner argues that management was aware of her protected EEO activity and removed her while that protected EEO activity was pending, we find that those facts are not sufficient to prove causation in this case. We emphasize that the MSPB specifically found that management's negative opinion of her work pre-dated her protected EEO activity and that management did not hold her to a higher standard than EEO Managers who had not engaged in protected EEO activity. Petitioner did not show that those MSPB findings are unsupported by the evidence in the record as a whole. Although Petitioner argues that the MSPB should not have credited management's testimony (about its lack of retaliatory intent), we accept the MSPB AJ's demeanor-based credibility determinations.3
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate finding that Petitioner did not establish that her removal was based on reprisal for prior protected EEO activity.
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 unlawful 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. 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
_2/14/17_________________
Date
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.
2 The MSPB AJ also questioned how a GS-7 EEO Specialist would be in a position to have substantive knowledge about the quality of Petitioner's work.
3 An Administrative Judge's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B.2 (Aug. 5, 2015)
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