0320160065
10-28-2016
Stella B.,1 Petitioner, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stella B.,1
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320160065
MSPB No. PH-0432-15-0405-I-1
DECISION
On August 29, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 bases of race (African-American), sex (female), or age (55) when it demoted her, despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
On June 3, 2012, the Agency promoted Petitioner from a GS-6 Disability Assistant position to a GS-7 Benefit Authorizer trainee position at its Office of Disability Operations in Woodlawn, Maryland. Petitioner's first-level supervisor was the Deputy Module Manager (FS1 - African-American, female, 60; S1 - race unknown, female, age unknown).2 Petitioner's second-level supervisor was the Deputy Division Director (S2 - Caucasian, female, 38).
The Agency required trainees to complete a training program consisting of two phases: (1) nine months of classroom instruction; and (2) a hands-on training module, which could last up to one year. In order to complete the training module, trainees had to be able to process an average of 5 cases a day with an accuracy of 83 percent for eight weeks, with the last four weeks being consecutive.
On March 22, 2013, after completing nine months of classroom instruction, Petitioner transitioned into the hands-on training module. Petitioner was one of 15 trainees supervised by FS1. The Agency had divided the 15 trainees into two classes: class 1204, which consisted of Petitioner and seven other trainees; and class 1205, which consisted of seven trainees. Of the eight trainees in class 1204, seven were African-American, seven were female, and seven were at least 40 years of age. Of the seven trainees in class 1205, six were African-American, two were female, and one was at least 40 years of age.
FS1 had concerns about Petitioner's progress in the hands-on training module. On June 3, 2013, FS1 placed Petitioner on a 30-day performance assistance (PA) plan. During the PA plan period, Petitioner processed an average of 1.32 cases a day with an accuracy of 69.2 percent. On September 16, 2013, FS1 placed Petitioner on a 120-day opportunity to perform successfully (OPS) plan. During the OPS plan period, Petitioner processed an average of 2.24 cases a day with an accuracy of 67.2 percent.
On July 25, 2014, S1 issued Petitioner a notice of proposed demotion for unacceptable performance during the OPS plan period. Specifically, S1 cited Petitioner's inability to meet the performance standard of processing an average of 5 cases a day with an accuracy of 83 percent. On October 2, 2014, S2 issued a decision to demote Petitioner from her GS-7 Benefit Authorizer trainee position to her previous GS-6 Disability Assistant position, effective October 5, 2014. In class 1204, only one trainee (African-American, female, 56) completed the hands-on training module. In class 1205, all seven trainees completed the hands-on training module.
MSPB
Petitioner filed a mixed case complaint with the Agency alleging that it discriminated against her on the bases of race (African-American), sex (female), and age (55) when it demoted her. After the Agency issued a final decision finding no discrimination, Petitioner filed an appeal with the MSPB.
On December 7, 2015, based on the written record,3 an MSPB Administrative Judge (AJ) issued an initial decision finding no discrimination and affirming the Agency's decision to demote Petitioner. 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.
First, the MSPB AJ found that Petitioner did not prove, by a preponderance of the evidence, that her race was a motivating factor in her demotion. Although six of the seven trainees who did not complete the hands-on training module were African-American, the MSPB AJ noted that seven of the eight trainees who completed the hands-on training module were also African-American. Although 46 percent of the African-American trainees did not complete the hands-on training module, the MSPB AJ noted that 50 percent of the trainees who were not African-American also did not complete the hands-on training module.
Second, the MSPB AJ found that Petitioner did not prove, by a preponderance of the evidence, that her sex or age was a motivating factor in her demotion. Although an initial review of the evidence raised "troubling questions" and "suspicions" because of the demographic disparity in who did not complete the training (six of nine female trainees versus one of six male trainees; six of eight trainees at least 40 years of age versus one of seven trainees under 40 years of age), the MSPB AJ found that a more in-depth review of the evidence supported the Agency's position that it did not treat the trainees differently based on sex or age. Specifically, the MSPB AJ found that the Agency's decision to divide the trainees into class 1204 and class 1205 was not discriminatory. In so finding, the MSPB AJ cited FS1's affidavit testimony that the trainees who had difficulty during the classroom instruction phase were placed in class 1204 so that they could receive more in-depth training and assistance in the hopes that they would improve their understanding of the material. Moreover, the MSPB AJ found that the Agency's decision about who did and did not complete the hands-on module training was not discriminatory. In so finding, the MSPB AJ noted the following: the record showed that the Agency applied the same objective performance standard to all the trainees; Petitioner did not claim that the standard was discriminatory; Petitioner did not claim, nor was there any evidence to suggest, that the Agency applied the standard more rigorously when assessing older female trainees or intentionally demoted the older female trainees despite them having met the standard; and Petitioner herself admitted that she was not able to meet the standard.
Petitioner then filed a petition for review with the full Board. On July 28, 2016, the Board issued a final order denying Petitioner's petition. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
Petitioner requested a review of the MSPB's final decision, but her petition did not contain a statement of the reasons why the decision of the MSPB is alleged to be incorrect, in whole or in part, with regard to the issue of 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 McDonnell Douglas analysis in deciding Petitioner's claims of race, sex, and age discrimination when the Agency demoted 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 the Agency did not subject Petitioner to disparate treatment on the bases of race, sex, or age. First, assuming, arguendo, that Petitioner established a prima facie case on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for demoting her; namely, her performance during the OPS plan period was unacceptable because she was unable to meet the performance standard of processing an average of 5 cases a day with an accuracy rate of 83 percent. Second, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Specifically, the record contains evidence that the performance standard required trainees to process an average of 5 cases a day, yet Petitioner only processed an average of 2.24 cases a day during the OPS plan period. In addition, the record contains evidence that the performance standard required trainees to process cases with an accuracy rate of 83 percent, yet Petitioner only processed cases with an accuracy rate of 67.2 percent during the OPS plan period. Moreover, the record does not contain any evidence that the Agency did not enforce the performance standard in an evenhanded manner, without regard to race, sex, or age. See generally EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-VII.B.7 (Apr. 19, 2006).
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 demotion was based on race, sex, or age.
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
_10/28/16_________________
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 In April 2014, S1 replaced FS1 as the Deputy Module Manager.
3 The MSPB AJ stated that, because Petitioner did not show good cause for why she did not comply with a hearing order, the hearing she had requested was cancelled.
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