0320140043
08-08-2016
Trevor F.,1 Petitioner, v. Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trevor F.,1
Petitioner,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Petition No. 0320140043
MSPB No. DC-531D-13-1273-I-1
DECISION
On April 5, 2014, 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 ultimate finding of no discrimination.
ISSUE PRESENTED
The issue presented is whether the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish discrimination on the bases of race (African-American) or reprisal for prior protected EEO activity (EEO activity beginning in February 2012 and EEO Counselor contact in June 2013) when the Agency denied him a within-grade increase (WGI).2
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Grants Management Specialist, GS-12, step 1, at the Agency's Coastal Impact Assistance Program (CIAP) Branch in Arlington, Virginia. Complainant began working in the position on December 4, 2011 and was subject to a one-year probationary period. Beginning on or about June 27, 2012, Petitioner's first-level supervisor was the Branch Chief (S1 - Caucasian).
On September 20, 2012, S1 signed a "within-grade notice" form pertaining to Petitioner. MSPB File, Tab 36, at 10. The form indicated that Petitioner's projected WGI effective date was December 2, 2012 and contained the following options: (1) "The employee's performance of duties is at a level of competence fully qualifying for this increase;" or (2) "The employee's performance of duties is not at an acceptable level of competence. Withholding action taken." S1 selected the second option.
On November 30, 2012, S1 issued Petitioner a notice of termination during his probationary period, effective December 3, 2012. Subsequently, Petitioner filed an MSPB appeal challenging his termination. On April 21, 2013, pursuant to an MSPB settlement agreement, the Agency reinstated Petitioner to the position of Grants Management Specialist, GS-12, step 1. Upon reinstatement, the Agency assigned Petitioner to a new first-level supervisor.
On June 10, 2013, Petitioner contacted an EEO Counselor alleging that the Agency discriminated against him in connection with events beginning in May 2013. Subsequently, the EEO Counselor interviewed Petitioner's new first-level supervisor and second-level supervisor. On July 9, 2013, the EEO Counselor issued Petitioner a notice of final interview and right to file a discrimination complaint (Agency No. DOI-FWS-13-0329).
On July 9, 2013, the Agency approved a denial of WGI for Petitioner. According to an SF-50 Notification of Personnel Action, Petitioner's WGI to step 2 was denied, with an effective date of December 2, 2012, because his work was not at an acceptable level of performance. The
SF-50 contained no information about who approved the denial; the signature box for the approving official was blank.
MSPB
On July 25, 2013, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity (EEO activity beginning in February 2012 and EEO Counselor contact in June 2013) when it denied him a WGI from step 1 to step 2.
On February 28, 2014, based on the written record,3 an MSPB Administrative Judge (AJ) issued an initial decision on the appeal. The MSPB AJ reversed the Agency's denial of Petitioner's WGI,4 but found that Petitioner did not establish discrimination on the bases of race or reprisal.
Regarding the denial of a WGI, the MSPB AJ found that it was not sustained. Specifically, citing the statute and regulations governing WGIs, the MSPB AJ noted that: (a) an agency may deny an employee's WGI if the employee is not performing at an acceptable level of competence; and (b) an acceptable level of competence is based on the employee's current rating of record. Here, the MSPB AJ found that the Agency did not issue Petitioner a rating of record. Because Petitioner had no rating of record, the MSPB AJ found that the Agency could not properly make a determination about whether he maintained an acceptable level of competence.
Regarding discrimination, the MSPB AJ found that the Agency articulated a legitimate, nondiscriminatory reason for denying Petitioner a WGI; namely, the basis for the denial was S1's determination on September 20, 2012 that Petitioner's performance was not at an acceptable level of competence. Moreover, the MSPB AJ found that Petitioner did not establish that the Agency's reason was pretextual.
First, the MSPB AJ found that, even though S1's determination was not based on a rating of record and therefore the denial of Petitioner's WGI could not be sustained, it did not mean that S1's evaluation of Petitioner's performance was not supported by the record. Specifically, the MSPB AJ cited S1's August-September 2012 emails in which she identified discussions with Petitioner about his performance deficiencies and provided specific examples of those performance deficiencies. Although Petitioner disagreed with S1's assessment of his work and with how S1 wanted things done, the MSPB AJ found that it was not evidence of discrimination for a supervisor to require an employee to follow her preferred methods of operation. Although Petitioner presented emails regarding his contributions to the office, the MSPB AJ found that the emails, which related to him showing initiative in offering training and assisting in the transition prior to S1 becoming his supervisor, did not relate to S1's assessment of Petitioner's performance or the specific examples of his performance deficiencies.
Second, the MSPB AJ found that Petitioner did not show that S1 treated him differently than similarly situated employees who were not African-American or who did not engage in prior protected EEO activity. Although Petitioner asserted that S1 was a bad supervisor who had a problem with many subordinates (according to Petitioner, of the six employees in S1's office when S1 became the supervisor, two quit, one was terminated, and one was reassigned), the MSPB AJ found that this did not support a finding that she discriminated against Petitioner but rather demonstrated that S1 was generally dissatisfied with the employees in the office she was brought in to supervise. Although Petitioner asserted that S1 changed policies that affected his work, the MSPB AJ found that S1 sent the policy changes to all of her subordinates and did not direct the new policies only to employees who were African-American or who had engaged in prior protected EEO activity. Although Petitioner alleged that the Agency did not permit African-American Grants Management Specialists to access the CIAP inbox, which slowed down his ability to perform the duties of his position, the MSPB AJ found that he provided no specific information about the allegation (i.e., who made the decision, when the decision was made, and how the decision was communicated). Although Petitioner asserted that S1 gave his work special scrutiny that she did not apply to others, the MSPB AJ found that S1 offered nothing beyond his conclusory statement to support his position.
Petitioner then filed the instant petition.
ARGUMENTS IN PETITION5
In his petition, Petitioner contends that the MSPB erred in finding no race or reprisal discrimination. Among other things, citing emails (from previous supervisors, grantees, and coworkers) praising his performance, Petitioner argues that, in July 2012, S1 became aware of his prior protected EEO activity and began falsely accusing him of poor performance. In addition, Petitioner argues that S1 was interviewed by the EEO Counselor about his allegations of discrimination in Agency No. DOI-FWS-13-0329, S1 denied him a WGI only three days later on July 9, 2013, S1 backdated the denial to December 2, 2012, and S1 attempted to conceal her responsibility for the denial by not signing the SF-50. Finally, Petitioner argues that S1 approved WGIs for several Caucasian employees and one African-American employee, even though none of them received an annual performance appraisal or a rating of record for 2012.
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
To prevail in a disparate treatment claim, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A petitioner must initially establish 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 804 n.14. 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). To ultimately prevail, a petitioner must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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).
Assuming, arguendo, that Petitioner established a prima facie case on the bases of race and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for denying him a WGI; namely, Petitioner's unacceptable performance, as described by S1's August-September 2012 emails and as determined by S1 on the September 20, 2012 "within-grade notice" form.
Moreover, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for race or reprisal discrimination.
First, even assuming that S1 became aware in July 2012 of Petitioner's prior protected EEO activity, Petitioner did not show that S1 falsely accused him of poor performance. We echo the MSPB's reasoning that, even though S1's September 20, 2012 determination was not based on a rating of record and therefore the denial of Petitioner's WGI could not be sustained, it did not mean that S1's evaluation of Petitioner's performance was not supported by the record. Although Petitioner cites emails (from previous supervisors, grantees, and coworkers) praising his performance, we find that those emails do not contradict S1's evaluation of his performance because they were from individuals who supervised him prior to S1's tenure or who did not supervise him at all.
Second, even assuming that S1 approved the denial of a WGI on July 9, 2013, Petitioner did not show that his race or prior protected EEO activity played a role in S1's decision-making. Although Petitioner argues that S1 denied him a WGI only three days after being interviewed by an EEO Counselor about his allegations of discrimination in Agency No. DOI-FWS-13-0329, there is no evidence that the EEO Counselor interviewed S1 at all; instead the EEO Counselor's Report reflects that the EEO Counselor only interviewed Petitioner's new first-level supervisor and second-level supervisor. Report of Investigation (ROI), at 37-45. We note that the EEO Investigator did interview S1, but S1's affidavit reflects that the interview did not occur until October 21, 2013. Id. at 183. Although Petitioner questions why S1 backdated the denial of a WGI to December 2012, we find that the December 2012 effective date is not evidence of any discriminatory intent. A fair reading of the record reflects the following: (i) Petitioner was hired in December 2011 and was not due a WGI until December 2012; (ii) the Agency, i.e., S1, made a determination in September 2012 to deny him a WGI, but the denial would not have been effective until December 2012; (iii) the Agency terminated Petitioner from his position in December 2012; (iv) because Petitioner was no longer an employee, the Agency did not process an SF-50 for the denial of a WGI; (v) Petitioner was reinstated in April 2013; and (vi) because Petitioner was again an employee, the Agency processed an SF-50 in July 2013 for the denial of a WGI with an effective date of December 2012.
Third, Petitioner did not show that S1 treated him differently from similarly situated employees who were not African-American or who did not engage in protected EEO activity. Assuming arguendo that S1 approved WGIs for several Caucasian employees and one African-American employee but denied a WGI for Petitioner, there is no evidence in the record that the other employees were similarly situated in that they had documented performance problems like Petitioner had.
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 race or reprisal 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 establish that the Agency discriminated against him on the bases of race or reprisal for prior protected EEO activity when it denied him a WGI.
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
_8/8/16_________________
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 his petition, Petitioner did not specifically challenge the MSPB's finding that he did not establish discrimination on the basis of national origin. Although the Commission has the right to review all of the issues in a petition on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised in a petition. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 9-9 (Aug. 5, 2015). Accordingly, we will not address that basis in our decision.
3 Petitioner withdrew his request for a hearing.
4 The MSPB AJ ordered the Agency to award Petitioner a WGI with back pay.
5 In addition to the supporting statement filed concurrently with his petition on April 5, 2014, Petitioner filed numerous supporting statements in 2014, 2015, and 2016. A petitioner is required to file any supporting statement concurrently with the petition. See 29 C.F.R.
� 1614.304(b). Accordingly, we decline to consider Petitioner's subsequent supporting statements as they were untimely filed.
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