[Redacted], Miguelina S., 1 Petitioner,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Sep 30, 2021

Petition No. 2021001988 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Miguelina S.,1 Petitioner, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Petition No. 2021001988 MSPB No. DC-0752-19-0506-i-2 DECISION 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 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. ISSUE PRESENTED The issue presented is whether the MSPB Administrative Judge (AJ) properly found that Petitioner did not establish that the Agency discriminated against her on the basis of disability and/or in reprisal for protected activity when it removed her from federal employment. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Residential Health Specialist, GS-0601-13, at the Agency’s Policy and Standards Division (PSD), Office of Lead Hazard Control and Healthy Homes in Washington, D.C. 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. 2021001988 2 On September 28, 2018, Petitioner’s first-line supervisor (S1) issued Petitioner a Notice of Proposed Removal. S1 informed Petitioner that the proposed removal was based on the charge of failure to follow instructions. Specifically, S1 alleged that over a four-month period, Petitioner was counseled on her failure to follow established leave procedures along with Petitioner’s responsibility to validate her WebTA at the end of each pay period. S1 noted that Petitioner was late entering her time; failed to submit her time before a final submission deadline between HUD and the Treasury’s Bureau of Fiscal Services; and consistently failed to follow Office and Departmental policy in submitting leave requests despite repeated reminders for eight consecutive pay periods. On April 18, 2019, the Agency sustained Petitioner’s removal. Petitioner timely filed a petition to the MSPB to appeal the Agency’s decision to remove her from federal service. A hearing was held and thereafter an MSPB AJ issued an initial decision finding that the Agency had not engaged in discrimination as alleged by Petitioner and affirmed her removal. In sustaining the charges, the MSPB AJ found that the Agency established by a preponderance of the evidence that Petitioner failed to follow instructions as supported by six specifications. In support, the MSPB AJ noted that the Agency provided copies of all email correspondence referenced in the specifications, S1 testified regarding relevant context and background information, and other management officials provided corroborating testimony. Regarding disability discrimination, the MSPB AJ found that while the record demonstrated that she is disabled based on her rheumatoid arthritis, the evidence showed that Petitioner was not treated differently, and her reasonable accommodation request was granted with appropriate medical documentation.2 The MSPB AJ determined that while Complainant reported some medical challenges during the relevant period, she did not show that her condition ultimately prevented her from working and/or complying with time and attendance policies or leave- requesting obligations. Moreover, the MSPB found that there was overwhelming evidence in the record demonstrating that Petitioner engaged in misconduct as alleged. The MSPB AJ concluded that Petitioner failed to establish that the Agency retaliated against her based on her prior EEO activity and/or discriminated against her based on her reasonable accommodation request. Petitioner then filed the instant petition. ARGUMENTS IN PETITION Petitioner contends that the Commission should not affirm the MSPB AJ’s initial decision. Petitioner argues that a review of the record will reveal inconsistencies in the responses provided by the responsible management officials. Petitioner asserts that the Agency should be sanctioned, and the Commission should issue a finding of discrimination in her favor. 2 In the initial decision, the MSPB AJ noted that Petitioner affirmed that she is not raising a claim that the agency engaged in disability discrimination based on its failure to accommodate her disability. Therefore, we will not address failure to accommodate in this decision. 2021001988 3 The Agency requests that the Commission concur with the MSPB AJ’s decision. 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 finding no discrimination, 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, inter alia, 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. 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 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). We find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's removal claim. However, we have analyzed this case according to the McDonnell Douglas paradigm and find that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her based on her disability and/or in reprisal for protected activity. Assuming, arguendo, that Petitioner established a prima facie case of discrimination based on disability and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal. 2021001988 4 Specifically, the Agency stressed that Petitioner was removed due to her unacceptable compliance with attendance policies and, as the MSPB AJ noted, Petitioner did not refute that she engaged in the charged misconduct. The record reflects extensive correspondence supporting the Agency’s contention that Petitioner failed to enter her time as instructed, despite repeated reminders. Petitioner has not established that the Agency's reasons are pretextual. Further, she has not shown that the Agency's explanation is unworthy of credence. Accordingly, we find that the Agency did not subject Petitioner to disability discrimination or reprisal as alleged. 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. 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. 2021001988 5 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 September 30, 2021 Date