0320160041
06-29-2016
Terrie M.,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
Terrie M.,1
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320160041
MSPB No. DC-0752-14-0996-I-1
DECISION
On April 15, 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 we find that Petitioner did not demonstrate that she was subjected to reprisal.
ISSUE PRESENTED
The issue presented in this case is whether Petitioner was subjected to reprisal when she was demoted from her position.
BACKGROUND
Petitioner was reduced in grade from a GS-14 District Manager to a GS-12 Technical Expert, effective September 7, 2014 on a charge of negligent performance of her duties. The Agency determined that Petitioner was negligent in the performance of her job duties as a second-level supervisor when she failed to take appropriate action to ensure fair and equitable treatment of employees in response to discriminatory statements made by her supervisory subordinate (S1).
The record revealed that in 2009, S1 stated to Petitioner that "she did not like men" and in response, Petitioner told S1 that the comment was inappropriate and that she could not say such thing in the workplace. S1 responded that that was the truth, and indicated that "I don't want any more males in my unit." Petitioner subsequently transferred a male employee away for S1's supervision. She did not, however, document this incident or her response to it. In November 2011, one of S1's employees complained about S1 being overbearing and unfair. Petitioner told S1 to reduce this worker's work load but she did not.
In April 2012, S1 stated to Petitioner that she "trusts whites more than other," which Petitioner understood to mean that S1 "trusted whites more than any other race." In response, Petitioner told S1 that "that was her choice," but that she could "get into trouble" for making such statements. Again, Petitioner did not document this incident or her response to it.
Thereafter between April 2012 and August 2012, two of S1's subordinates filed EEO complaints alleging that they received unfair performance ratings and did not receive Quality Step Increases (QSI). Petitioner provided affidavits in their favor indicating that it was likely that S1 discriminated against them based on her prior interactions with S1. The Agency thereafter interviewed Petitioner regarding the statements she made in her affidavits. Petitioner told the Agency that she did not know whether S1 discriminated against any other employees but she was "leery" based on her conversations with S1. Petitioner was thereafter disciplined for her failure to discipline S1. Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when she received a reduction in grade for negligently performing her duties.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency proved its charge by preponderant evidence. The AJ also determined that Petitioner failed to prove her affirmative defense of EEO reprisal. Petitioner sought review by the full Board. The Board found that Petitioner had not established any basis for granting the petition for review. The Board affirmed the initial decision. The Board also found that Petitioner did not show that she was subjected to reprisal with respect to the demotion. The Board noted that Petitioner had added in her request for review the bases of race and sex. The Board determined that Petitioner provided no evidence as to why she did not originally include these bases so they were not considered.
Petitioner then filed the instant petition. On appeal, Petitioner argues that she is being punished for telling the truth. She maintains that because she is a 55 year old, disabled, black female she was demoted based on unsubstantiated evidence to warrant such disciplinary action. Petitioner maintains that she gave S1 a verbal reprimand that saying words like that could be perceived as discrimination and that she "didn't ever want to hear those words again."
With regard to the second incident where S1 stated that she only trusted white people, Petitioner maintains that she reported the issue to her immediate supervisor but nothing ever came out of it until someone filed an EEO complaint. Petitioner notes that after S1 retired she was hired back as an annuitant and yet she, Petitioner, was demoted. Petitioner explains that she was not given training regarding EEO matters until two months before she had to give her affidavit so she was not familiar with how to handle these matters.
Further, Petitioner maintains that the initial decision is incorrect because it applied the law of negligence incorrectly to her actions. She maintains that she did her duties to the best of her abilities and with regard to how she was trained. Petitioner contends that she was a "scapegoat," and that she has never been so humiliated, harassed or made to feel less than a human being than in this situation. Petitioner maintains that she is now retired, but seeks to have her GS-14 status restored, attorney's fees, $100,000.00 in restitution for the harm and despair that she has encountered and back pay.
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).
In the instant case, we agree with the MSPB that Petitioner did not establish that she was subjected to reprisal. We find that even if we assume arguendo that Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that she was demoted because she failed to properly address the statements made by S1, which subjected the Agency to liability for discrimination. We find that Petitioner did not demonstrate that the Agency's reasons for the demotion were pretext for discrimination. Because the MSPB found that Petitioner improperly raised the additional affirmative defenses of race, age, and disability for the first time in her petition for review, we find that these matters will not be addressed in our decision herein.
With respect to Petitioner's contentions on appeal, while it is clear that Petitioner disagrees with the decision, she has not provided any evidence which suggests that the Agency's actions were based on discriminatory animus in retaliation for her prior 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 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. 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
__6/29/16________________
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.
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