[Redacted], Dalton E., 1 Petitioner,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Petition No. 2020003305 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dalton E.,1 Petitioner, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Petition No. 2020003305 MSPB No. DC-0432-19-0318-I-1 DECISION On May 2, 2020, 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 his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Petitioner was employed as an International Issues Analyst, GS-0301-14, in the Agency’s Office of Policy and Program Development (OPPD), Import/Export Policy Development Staff (IPDS) located in Washington, D.C. In 2016, the Agency initiated reorganization efforts. As a result, the IPDS team’s workload in this area increased because they had to update and revise all the relevant documentation to reflect changes that flowed from the reorganization. All employees were impacted by this reorganization and change in responsibilities. 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. 2020003305 2 On October 30, 2017, Petitioner’s second-line supervisor, (S2), signed his 2017 performance appraisal as prepared by the rating official and Director (RMO1). Petitioner was rated at the “Fully Successful” level with a notation that it was only “marginally”. In early November 2017, RMO1 informed Petitioner during his performance-review meeting that his performance was only “marginally” successful. RMO1 informed Petitioner that he needed to focus on his assignments and avoid doing “things outside of his portfolio” such as “discussing anything with foreign officials unless specifically directed” or “focusing on HALAL.” RMO1 provided a list of other tasks that Petitioner could focus on improving as well. On November 14, 2017, Petitioner received a copy of his Performance Plan for FY 2018 that described the critical job elements for his position. Petitioner refused to sign the plan. Shortly after, Petitioner filed an EEO complaint against RMO1. In January 2018, the Secretary of Agriculture initiated a new telework policy that limited telework privileges to one day per week unless the employee was entitled to reasonable accommodation based on current medical documentation. As part of the new policy, any employee that had been granted reasonable accommodation in the past had to resubmit their requests to the Reasonable Accommodation Office for renewed approval. As part of the implementation process, the Agency sent all of its employees an email describing the new policy and related requirements, and also conducted a town hall meeting wherein this policy was described and discussed. Petitioner informed RMO1 and the Deputy Director (RMO2) that he wished to continue his full time telework based on his previously granted reasonable accommodation. RMO2 inquired with the Reasonable Accommodation Office (RAC), where he discovered that there was no existing and/or new accommodation request on file. As such, management informed Petitioner that that he had to immediately submit a request and support it with current medical documentation. They also explained that, as part of the policy, a supervisor could provisionally grant the accommodation as long as the employee had submitted a completed request form with the RAC. Petitioner did not provide the requested documentation. As a result, Petitioner was called to work in the office until he provided the request and appropriate documentation. Once Petitioner did so, RMO1 and RMO2 were able to provisionally grant him the fulltime telework privileges. On March 15, 2018, RMO1, RMO2, and Petitioner’s Team Lead, met with Petitioner to conduct his mid-term performance review and notified him that his performance was unacceptable. To improve his performance, RMO1 issued him a Letter of Opportunity and explained that the Team Lead would assist him. On May 11, 2018, RMO1 met with Petitioner again and told him that his performance remained unacceptable. As a result, RMO1 initiated a 90-day Performance Improvement Plan (PIP) to provide him with an opportunity to improve his performance. 2020003305 3 On August 11, 2018, the PIP period concluded and RMO1 determined that Petitioner’s performance had remained unacceptable in all three critical elements of his Performance Plan throughout the PIP. On October 10, 2018, the Agency issued Petitioner his FY 2018 performance appraisal and rated him at the “Does Not Meet Fully Successful” level for all three critical elements with an overall summary of rating of “Unacceptable.” By letter dated November 16, 2018, an Employee and Labor Relations Specialist proposed Petitioner’s removal pursuant to 5 U.S.C. Chapter 43 because he failed to improve his performance during the PIP. In the proposal notice, Petitioner’s performance failures were outlined. On December 11, 2018, Petitioner filed a written response to the proposed action. By letter dated February 1, 2019, the Chief of the Labor and Employee Relations Division issued a decision that sustained the proposed action and she notified Petitioner that he would be removed “effective immediately.” Prior to his removal for cause, Petitioner retired from federal service. On February 12, 2019, the Agency processed Petitioner’s separation as a discontinued service retirement. On February 24, 2019, Petitioner electronically filed an appeal with MSPB and challenged the removal action. During the processing of his appeal, the parties agreed that the following were the only material issues to be decided in the appeal: did Petitioner prove by preponderant evidence that the removal action was the product of age, religious, and/or disability discrimination and in reprisal for Petitioner’s EEO actions on November 17, 2017.2 On November 20, 2019, the MSPB AJ held a hearing. The MSPB AJ determined that Petitioner failed to demonstrate that his disability, national origin, age, religion and/or his 2017 EEO activity was a motivating factor and/or influence on the Agency’s performance related actions. Regarding Petitioner’s telework privileges being suspended for several weeks, the MSPB AJ determined the record did not demonstrate that Petitioner’s privileges were suspended based on his disability or in retaliation. The MSPB AJ noted that based on the record, it was clear that RMO1 and RMO2 were obligated to take the actions described above based on the Agency’s new policy. The MSPB AJ ultimately determined that the preponderant evidence established that the Agency would have taken the same actions in the absence of any improper motive or influence under the circumstances of the case. In finding no discrimination based on religion, age, national origin, disability and reprisal, the MSPB AJ relied upon the MSPB’s decision in Savage v. Dep’t 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. 2 The MSPB AJ noted that Petitioner brought forth a claim of discrimination on his national origin during the hearing process, and the MSPB AJ considered this claim during his review. 2020003305 4 On April 10, 2020, Petitioner then filed the instant petition. In his petition, Petitioner provides a detailed brief in support of his petition. Petitioner reiterates his arguments that the Agency’s performance improvement plan and subsequent removal were all designed for him to fail and was clear pretext for discrimination. 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 her sex, national origin, 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. 0230160016 (May 10, 2016). We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated and retaliated against him as alleged. Disparate Treatment 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. Tex. Dep’t of Cmty. 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 Ctr. 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. 2020003305 5 We assume, arguendo, that Petitioner has established prima facie cases of discrimination based on religion, disability,3 national origin, age, and reprisal. However, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, that the actions it took were based solely on Petitioner’s declining work performance, and not his protected classes or in reprisal. The record demonstrated that Petitioner’s work performance review, provided in November 2017, while marked as successful, was notated to him both verbally and in writing that it was only marginally so. The record demonstrated that management held numerous informal and formal discussions with Petitioner concerning various areas of concern, such as his project management and accuracy of his responses to public inquiries. Management officials testified that colleagues and consumers would also send in concerns and/or complaints regarding Petitioner’s work. In one instance, officials testified that Petitioner misinformed a consumer and potentially caused severe economic damage to the consumer. Management noted that they intervened, and a resolution was provided to prevent economic harm to the consumer. Management officials attested that it was just one example of how Petitioner’s work sometimes required additional supervision and/or substantial revision. Ultimately, Petitioner failed to improve by the PIP’s end and he was subsequently set to be removed from federal service. The Agency has demonstrated that the subsequent removal actions were based on Petitioner’s work performance, and not based on his protected classes or in retaliation. Petitioner reasoned at length that the Agency’s actions were pretextual. Petitioner argued that he had a long and positive federal career in which he received numerous awards and praise for his contributions. Petitioner asserted that he went from a well-regarded employee to one with seemingly chronic issues after RMO1 became part of his supervisory chain. Petitioner also asserted that RMO1 held anti-Muslim sentiment but provided no evidence to support such allegation. Petitioner also argued that RMO1 set him up for failure by giving him an increase of complicated work in order to terminate him. However, the record demonstrated that in 2016, an Agency reorganization impacted the responsibilities of all employees. Witnesses testified to an increase in complicated assignments following the reorganization. Consequently, Petitioner’s contention that RMO1 solely increased his workload in terms of assignments and complexity is contradicted by the record. Petitioner also noted that it was only after he submitted his November 2017 EEO complaint that RMO1 start to criticize his work. The record here clearly demonstrated that this was not the case, and the RMO1 and other management officials had both informally and formally discussed with Petitioner the need to improve certain areas of his work well before his November 2017 EEO contact. Based on the record, we find that the Petitioner has not shown that the articulated reasons were pretext for discrimination or retaliation. Disability & Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. 3 For the purposes of analysis, we assume Petitioner is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2020003305 6 §§ 1630.2(o) and (p); Enforcement Guidance on Reasonable Accommodation; Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Reasonable accommodation may include making facilities accessible, job restructuring, modifying work schedules, and other similar actions. Dennis v. Dep’t of Educ., EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory Comm’n, EEOC Appeal No. 0120041082 (Aug. 2, 2007), request for reconsid. denied, EEOC Request No. 0520070907 (July 9, 2008). To the extent that Petitioner is claiming that he was denied a reasonable accommodation, we find that despite Petitioner’s claim to the contrary, there is no indication that his fulltime telework was suspended because of his disability and/or in retaliation of his EEO claim. The record demonstrated that an Agency wide change to reasonable accommodation policies mandated that Petitioner resubmit his request to the Reasonable Accommodation Office for renewed approval. While Petitioner informed RMO1 and RMO2 that he wished to continue his full time telework based on his previously granted reasonable accommodation, the office did not have up to date medical documentation from Petitioner. As a result, management informed Petitioner that that he had to immediately submit a request and support it with current medical documentation. Officials informed Petitioner that as soon as he submitted the required documentation, management would be allowed to provisionally re-grant the accommodation while the RAC reviewed the paperwork. Here, Petitioner did not provide the requested documentation and as a result, Petitioner was called to work in the office until he provided the appropriate documentation. Once Petitioner provided supporting medical documentation, RMO1 and RMO2 provisionally granted him his prior telework privileges. There is no evidence to demonstrate that Petitioner was targeted based on his disability and/or in reprisal when his prior reasonable accommodation was suspended pending his renewal. 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. 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 (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. 2020003305 7 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 Petitioner’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 July 22, 2021 Date