0320160058
10-07-2016
Sylvester C.,1 Petitioner, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sylvester C.,1
Petitioner,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Petition No. 0320160058
MSPB No. DC-0432-13-3191-I-1
DECISION
On August 3, 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 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. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that the Agency discriminated against him 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 him on the bases of race, national origin, sex, or reprisal for prior protected EEO activity, in connection with his removal, despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Chemist, GS-1320-13, at the Agency's Center for Biologics Evaluation and Research, Facility for Biotechnology Resources (FBR), in Bethesda, Maryland. Petitioner's duties included performing DNA sequencing. Petitioner's first-level supervisor was the Facility Director (S1), who had hired him in 2004. Petitioner's second-level supervisor was the Associate Director for Research (S2).
On January 11, 2012, S1 issued Petitioner a 46-page notice of proposed removal for unacceptable performance during the July 29, 2011 to October 13, 2011 performance improvement plan (PIP) period. Specifically, the notice stated that Petitioner's performance was unacceptable in three critical elements (CEs): II.A - administrative requirements; II.B.1 - technical competence and knowledge; and II.B.5 - customer service. For CE II.A (administrative requirements), the notice discussed the following deficiencies: errors in calculating and reporting the number of incoming DNA sequencing requests and their respective fee-for-service cost; errors in reporting the number of DNA sequencing samples that meet acceptance requirements; and errors of a technical nature in written communications with investigators. The notice cited approximately 40 examples. For CE II.B.1 (technical competence and knowledge), the notice discussed the following deficiencies: errors in receiving DNA sequencing requests; errors in processing DNA sequencing requests; and errors in closing DNA sequencing requests. The notice cited approximately 50 examples. For CE II.B.5 (customer service), the notice discussed the following deficiencies: failure to maintain an effective line of communication with the staff assistant; failure to honor commitments related to updating information on primers; and unwillingness or inability to offer scientific and technical advice of the highest quality. The notice cited approximately 7 examples.
On January 25, 2012 and February 24, 2012, Petitioner submitted written responses to the notice of proposed removal. On April 9, 2012, S2 issued Petitioner a decision to remove him, effective April 13, 2012.
MSPB Mixed Case Appeal
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of race (Asian), national origin (Pakistani), sex (male), and reprisal for prior protected EEO activity (EEO complaint filed in March 2011) when it removed him.
On December 22, 2015, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no discrimination, and affirming Petitioner's removal.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency established by substantial documentary and testimonial evidence that Petitioner's performance in the three CEs was unacceptable during the PIP period. Specifically, the MSPB AJ cited the notice of proposed removal, which discussed detailed examples of Petitioner's performance deficiencies. In addition, the MSPB AJ cited Petitioner's work products, which often included handwritten corrections from S1. Moreover, the MSPB AJ credited S1's testimony about Petitioner's performance deficiencies; the MSPB AJ stated that S1 testified "in a very clear, direct and straightforward manner."
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.
In Petitioner's case, the MSPB AJ found that Petitioner did not show that his race, national origin, sex, or prior protected EEO activity was a motivating factor in his removal. Although Petitioner testified that his supervisors placed him on an unfair PIP that contained inaccurate information, purposefully interfered with his work, and targeted him for removal, the MSPB AJ did not credit that testimony. The MSPB AJ stated: "While I find [Petitioner] generally testified in a clear manner, I do not find he testified in a straightforward nor direct manner. I do not find [Petitioner]'s claims to be credible at all." In contrast, the MSPB AJ credited S2's testimony that the PIP did not include false or fabricated information and Petitioner was not unfairly singled out.
Petitioner then filed a petition for review with the full Board. On July 5, 2016, the Board issued a final order denying Petitioner's petition. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In his petition, Petitioner contends that the MSPB erred in finding no discrimination. Specifically, Petitioner argues that the MSPB failed to recognize that his removal was part of a pattern of discriminatory treatment, which began in November 2010 (after he applied for another position in FBR) and included other incidents that are part of his pending EEO complaint. In addition, Petitioner argues that the MSPB did not verify the validity of the PIP that his removal was based on; the PIP was fraudulent and contained false statements. Moreover, Petitioner argues that the MSPB ignored the September 2, 2011 and February 20, 2012 emails from S1 and S2 to Human Resources (HR), which showed that his removal was predetermined. Further, Petitioner argues that the MSPB incorrectly found that the Agency provided him with a meaningful opportunity to respond to the notice of proposed removal; he did not have an opportunity to respond verbally and did not have sufficient access to documents on his work computer. Finally, Petitioner argues that the MSPB should have considered his evidence instead of relying solely on the Agency's evidence.
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, national origin, sex, and reprisal discrimination when the Agency removed him; 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 him 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 he 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).
Assuming, arguendo, that Petitioner established a prima facie case on the alleged bases; we find that the Agency articulated a legitimate, nondiscriminatory reason for removing him; namely, Petitioner's unacceptable performance during the PIP period, as described in the January 11, 2012, notice of proposed removal.
Moreover, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for race, national origin, sex, or reprisal discrimination. Although Petitioner argues that his removal was part of a pattern of discriminatory treatment, we emphasize that the other incidents of alleged discrimination are being adjudicated in a pending EEO complaint and that there has been no finding of discrimination in connection with those incidents. Although Petitioner argues that the September 2, 2011 and February 20, 2012 emails show his removal was premeditated, we find no evidence that any premeditation was related to a protected basis. In the September 2, 2011, email, S1 told HR that Petitioner was not making an effort to meet the requirements of the PIP, she intended to propose his removal, and she would like a template for a notice of proposed removal so she could start working on it. In the February 20, 2012, email, S2 told HR that she had an initial draft of the removal decision and she may need to revise the initial draft based on Petitioner's subsequent response, but most of the content would remain the same. We decline to infer from the emails that any intent by S1 or S2 to remove Petitioner was based on his race, national origin, sex, or prior protected EEO activity, rather than on their assessment of his performance. Although Petitioner argues that he did not have a meaningful opportunity to respond to the notice of proposed removal, we emphasize that our review of the MSPB's decision is limited to allegations of discrimination and we decline to address his allegation of harmful procedural error. Although Petitioner argues that the MSPB should have credited his testimony instead of the testimony of S1 and S2 (about the acceptability of his performance, the validity of his PIP, and their treatment of him), we accept the MSPB AJ's demeanor-based credibility determinations.2
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 his removal was based on race, national origin, sex, or prior protected EEO activity.
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
_10/7/16_________________
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 An Administrative Judge's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 9-16 (Aug. 5, 2015)
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