[Redacted], Stephany K., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Petition No. 2021001610 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stephany K.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Petition No. 2021001610 MSPB No. SF-0714-20-0507-I-1 DECISION On December 8, 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 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 ultimate decision that Petitioner did not establish that the Agency retaliated against her as alleged. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Human Resources Specialist at the Agency’s Personnel Security Office in the Mountain View, California facility. On June 25, 2019, Petitioner was informed by the Chief of Human Resources (HR) Management (RMO21) that she was going to be transferred to the Personal Identity Verification (PIV) unit in August 2019. Petitioner found the position to be less desirable. When Petitioner transferred, the Chief Personnel Security Supervisor (RMO3) became her new supervisor, and the Lead Personnel Security Specialist (RMO4) had limited supervisory authority over Petitioner. 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 Responsible Management Official (RMO). 2021001610 2 On Petitioner’s first day, she informed RMO3 that she was filing an EEO complaint against RMO1 and RMO2 for the involuntary transfer. On October 10, 2019, RMO2 provided Petitioner with an Unacceptable performance evaluation. On January 13, 2020, a coworker (CW) requested that Petitioner complete a task that RMO4 initially requested of CW. CW explained that she could no longer complete the task due to an Agency policy requiring separate HR employees register and print employee badges. CW explained to Petitioner that she had already registered the employee, and therefore Petitioner would need to print the badge. Petitioner initially attempted to complete the task but was frustrated by the system, called CW a liar for passing the work onto her, and then refused to complete the task. RMO4 attempted to resolve the situation. Petitioner refused to engage with RMO4 and asserted that she was working on another task. This prompted RMO4 to remove Petitioner’s PIV badge to stop her from working so that she could engage with Petitioner. Petitioner reported RMO4’s response as harassing. On January 22, 2020, Petitioner filed a formal EEO complaint alleging race, sex, and reprisal- based discrimination by RMO3 and RMO4 when she was verbally informed that she would be transferred to the PIV unit; for receiving a non-satisfactory rating; and having her request for the performance rating to be altered denied. On February 5, 2020, towards the end of the workday, RMO4 noticed Petitioner photocopying Personally Identifiable Information (PII) and then placing it into a green folder. Initially the folder was placed on top of Petitioner’s workstation. However, RMO4 noticed the folder went missing when Petitioner was getting ready to leave. RMO4 suspected Petitioner was taking the folder home. RMO3 and RMO4 stopped Petitioner before she could go home and discovered that she had a folder containing 78 pages of PII in her handbag. RMO1 intervened in the situation and spoke with Petitioner regarding the incident. Petitioner apologized but asserted she did not know she could not take work home and that she was only trying to keep on top of work. RMO1 informed Petitioner that she was not allowed to remove PII from the office, or work from home. Petitioner did not deny attempting to remove the documents but asserted that that the event was not as severe as management made it appear. On February 25, 2020, Petitioner filed a formal EEO complaint alleging hostile work environment and race, sex, and reprisal-based discrimination by RMO3 and RMO4. The allegations encompassed incidents previously reported in the January 22, 2020 complaint. Complainant also alleged that she had been subjected to increasingly aggressive and intimidating actions by RMO3 and MO4, including increased scrutiny; having her belongings searched; and overall being professionally humiliated. On May 1, 2020, based on the January 13, 2020 and February 5, 2020 incidents, the Agency issued Petitioner a Notice of Proposed Removal based on five charges: 1) unauthorized removal of documents from human resources management, personal security office; 2) failure to follow policy and procedures; 3) lack of candor; 4) unacceptable behavior; and, 5) failure to follow instructions. The proposed removal would take effect on May 29, 2020. 2021001610 3 On May 11, 2020, Petitioner responded to the proposed removal. On May 21, 2020, the Agency sustained its prior proposal to remove Petitioner from federal service. On June 9, 2020, Petitioner filed her appeal with the MSPB. Petitioner asserted that she was discriminatorily removed from federal service based on her race and in reprisal for the complaints she had filed on January 22, and February 25, 2020. On October 16, 2020, the MSPB AJ issued the Initial Decision. The MSPB AJ provided a detailed analysis of the five charges Petitioner was charged with and determined that the Agency appropriately charged Petitioner on each count. Regarding Petitioner’s assertion that the removal was pretext for retaliation, the MSPB AJ also provided a detailed analysis and determined that there was no indication that the removal was retaliation for Petitioner’s EEO activity. Ultimately, the MSPB AJ determined that the Agency had provided legitimate, nondiscriminatory reasons for removing Petitioner, and that Petitioner had failed to demonstrate that the reasons were pretext for retaliation. The MSPB AJ affirmed the Agency’s decision to remove Petitioner from federal service. The Initial Decision became final on November 20, 2020. In finding no discrimination based on 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. On December 8, 2020, Petitioner filed the instant petition. CONTENTIONS ON APPEAL On appeal, Petitioner, through her counsel, provides a detailed statement reiterating her prior submissions to the MSPB AJ. Petitioner asserts that she was discriminatorily removed from federal service based on her prior EEO activity. Petitioner notes that she had previously filed an EEO complaint regarding race-based discrimination and believes the termination was based on this prior EEO activity. Petitioner emphasizes that management was well aware of her prior EEO activity, and that the removal charge was entirely unwarranted given her positive work-history spanning over a decade. Petitioner asserts that the only logical reason behind her termination was retaliation for her protected EEO activity. In response, the Agency asserted that the MSPB AJ’s Initial Decision thoroughly and accurately details the relevant facts and applied the appropriate legal standards to those facts. Upon consideration of the record, the Agency asserts that the MSPB AJ appropriately concluded that Petitioner failed to meet the burden of proof with respect to her discrimination complaint. Likewise, on appeal, the Agency argues that Petitioner has not presented any evidence to show she satisfied her burden of proof regarding the claims of unlawful discrimination. Accordingly, the Agency requests the Commission to affirm the MSPB AJ’s decision. 2021001610 4 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 Preliminary Matters In reviewing Petitioner’s MSPB appeal3, we note that she asserted that the termination was due to “race and reprisal discrimination.” However, in her appeal, her focus is solely on the reprisal portion of her complaint. As such, the Commission will also only focus on the reprisal portion of Petitioner’s complaint. Disparate Treatment 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 against her as alleged. 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. 3 Additionally, we note that for the first time on appeal, Petitioner referred to bases that were not raised previously. Specifically, Petitioner discusses age and disability-based discrimination in connection with the removal. From her appellate statement, it appears the bases were discussed as background information for her reprisal claim. However, to the extent that Petitioner is attempting to raise the bases on the appeal, we will not consider them as these bases were raised for the first time on appeal. We note that absent a compelling reason, a complainant/petitioner may not add a new basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v. Dep't of the Treasury, EEOC Appeal No. 01952240 (Mar. 27, 1997)). See also Jeanie P. v. U.S. Postal Serv., EEOC Appeal No. 2019004085 (Jan. 16, 2020). 2021001610 5 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. For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). We assume, for purposes of analysis only and without so finding, the Petitioner has established prima facie case of discrimination based on reprisal. However, the Agency has articulated a legitimate, nondiscriminatory reasons for its action. In this matter, Petitioner was charged with five counts that warranted removal from federal service. Petitioner asserted that the removal was not proportionate given the charges and her otherwise positive federal career that spanned over a decade. However, as the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions such as termination, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Here, the record demonstrated that the Agency charged Petitioner with Unacceptable Behavior for the January 13, 2020 incident. The MSPB AJ detailed the background of the charge, finding that Petitioner accused her colleague of lying with no evidence; refused to complete a task that is in her normal duties; and, then refused to engage with RMO4, who had supervisory authority over Petitioner’s work. The incident led management to find that Petitioner’s behavior was unsuitable, unattractive, and unbecoming of a federal employee. This later factored into the overall five charges that led to Petitioner’s termination. 2021001610 6 While Petitioner argued that the charge was inflated and clearly retaliation for her EEO activity, she has not denied the incident or her involvement. More importantly, while she had engaged in protected EEO activity, she has failed to demonstrate a nexus between her EEO activity and the charge. Lastly, the remaining four charges that led to her termination focused on the February 5, 2020 incident. Petitioner was in a sensitive position and had access to Personally Identifiable Information (PII) such as names, social security numbers, and more, of employees, patients, and volunteers of the Agency. Petitioner was not allowed to remove such confidential information from Agency premises, and in doing so violated Agency policy. In an effort to downplay the seriousness of her actions, Petitioner asserted that she was always in possession of such PII. However, she does not dispute her attempts to remove it from Agency property. Instead, she focuses on her good intentions, and the one-time incident. The MSPB AJ determined, and we agree, that the intent of Petitioner’s actions, to complete work from home, and the one-time incident does not negate her actions. Petitioner inappropriately attempted to remove PII from Agency property, and this led directly to the four additional charges, which ultimately led to her termination. Petitioner again has failed to demonstrate a nexus between her EEO activity and the charge. Petitioner has repeatedly asserted that all management officials were aware of her protected EEO activity, and therefore inflated the charges in order to terminate her. Based on the record, we agree with the MSPB AJ that the charges were warranted given the nature of the incidents and agree that she has failed to provide evidence that her termination was motivated by her prior EEO activity. There is no evidence to demonstrate that management’s actions were motivated by retaliatory animus. 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. 2021001610 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 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 September 23, 2021 Date