0320160023
04-27-2016
Sana I.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sana I.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160023
MSPB No. SF-0752-14-0792-I-1
DECISION
On February 10, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity 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 reasons stated below, the Commission CONCURS with the MSPB's finding of no discrimination and/or reprisal.
ISSUE PRESENTED
The issue presented is whether Petitioner established that she was discriminated against based on her national origin, age and/or prior EEO activity when she was removed from her position.
BACKGROUND
Petitioner worked as a Physical Therapist, GS-11, at the Agency's Southern Nevada Health Care System in Las Vegas, Nevada. In May 2014, the Agency proposed removing Petitioner based on four counts of "Failure to Recognize Contraindications." The Agency's deciding official sustained the removal and Petitioner appealed to the MSPB. Petitioner alleged that the Agency discriminated against her on the bases of national origin (Philippines), age (over 40), and reprisal for prior protected EEO activity when she was terminated from her position.
An MSPB Administrative Judge (AJ) issued an initial decision based on the record finding that the Agency sustained its removal action. With regard to Petitioner's affirmative defenses, the AJ found that Petitioner did not establish that she was subjected to discrimination and/or reprisal. Specifically, Petitioner maintained that her national origin (Philippines) was considered because she was the only "manager" not given sufficient time to meet all of her duties. Petitioner indicated that her age and prior EEO activity were also considered with regard to others reviewing her patient records, and being denied training which ultimately lead to her removal. Petitioner explains that she was not properly trained in mentoring a college student and was not placed on a performance improvement plan (PIP) even though other "managers" were placed on PIPS. Petitioner served as the Special Emphasis Program (SEP) Manager for the Asian Pacific Islander (API) Program of the Diversity Advisory Committee until July 23, 2013. Petitioner's implication that she was a "manager" appears to be a reference to the 2010 collateral duty appointment. On July 5, 2013, Petitioner's second-line supervisor (S2) declined to support Petitioner's continuation in her SEP role because her collateral duties were negatively affecting her patient care responsibilities. S2 informed the EEO office that Petitioner had been improperly cancelling, reassigning, and/or blocking her patient clinic duties in order to participate in SEP related events.
Petitioner also maintained that she was singled out for reviews of her work because of her protected bases. Management explained, however, that Petitioner was removed because coworkers noticed in Petitioner's charts that she had performed ultrasound therapy which placed a patient at risk. An outside review of Petitioner's patient records was conducted and four incidents were identified which became the basis for her removal. Management indicated that patient records were available to all employees to guarantee patient continuity of care and that Petitioner was not singled out for review. It was also noted that other physical therapists had to be assigned to cover Petitioner's patient care duties when she was not available due to SEP events, and personal matters. Management also explained that training was built in to the work hours so she had time to take training and if she needed additional training it was available. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Petitioner did not demonstrate that the reasons were pretext for discrimination.
Petitioner sought review by the full Board. The Board, after making a number of procedural determinations, denied the petition for review and affirmed the initial decision.2
Petitioner then filed the instant petition. Petitioner requests review of the final order. In response, the Agency indicates that the only issue before the OFO is whether Petitioner established that she was subjected to discrimination and reprisal.
ANALYSIS AND FINDINGS
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).
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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; 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. Texas Dept. of Community 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 Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Petitioner had established a prima facie case of discrimination based her national origin, age and prior EEO activity, we find that the Agency articulated a legitimate, non-discriminatory reason for removing her. Petitioner was removed from her position because of "failure to recognize contraindications," as set forth above. We find that Petitioner did not provide any evidence which demonstrated that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Additionally, we agree with the AJ that Petitioner did not show any evidence that her national origin, age or prior EEO activity played any role in this matter.
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 determination that Petitioner did not establish that the decision to remove her was discriminatory.
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 Mdden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/27/16________________
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 Board noted that after the AJ issued his decision in this matter, the MSPB issued its decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015) where it sought to establish a new analytical framework for examining cases such as the instant appeal. Because the Board found that the factual record was fully developed on Petitioner's affirmative defenses and that the AJ did not base his finding on witness demeanor, a remand for further adjudication was deemed unnecessary. Furthermore, the Board found that "applying the analytical framework in Savage would not change the result in this case"; therefore, it upheld the AJ's decision based solely on the existing record, and for the reasons contained in the initial decision. Consequently, the Savage decision played no role in the MSPB's final decision and need not be addressed further herein.
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