0320180033
06-05-2018
Vickie P.,1 Petitioner, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vickie P.,1
Petitioner,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180033
MSPB No. PH0752170092I1
DECISION
On February 20, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Petitioner worked as a Supervisory Information Technology Specialist, GS-14 at the Agency's Veterans Benefits Administration Information Technology Center (ITC) facility in Philadelphia, Pennsylvania. Petitioner alleged that the Agency discriminated against her on the bases of disability and reprisal for prior protected EEO activity when, by letter dated July 29, 2016, the Agency informed her that it proposed to remove her from federal employment for disruption of the work effort and disrespectful conduct. The charges were based on an incident that was reported to have occurred on June 23, 2016. By letter dated October 17, 2016, the deciding official sustained the charges, but instead of being removed, Petitioner was advised that she was being demoted from her GS-14 Supervisory IT Specialist position to a GS-12, step 10, IT Specialist position, effective October 30, 2016.
The record reflects that on June 23, 2016, beginning at approximately 10:30 a.m., Petitioner approached the cubicle of an IT Specialist regarding an issue with an assignment she completed. Petitioner expressed her concerns so loudly that she could be heard approximately 60 feet away from the cubicle, and caused other employees to stop working to investigate what was taking place. While the IT Specialist acknowledged that she had made a mistake with the assignment, rather than address the issue in a professional manner, Petitioner was loud, demeaning and condescending. Petitioner asked the IT Specialist "[Did she] know what [she was] doing." This work area was typically quiet so other employees noticed the exchange.
A hearing was conducted on November 14, 2017. An MSPB Administrative Judge (AJ) issued an initial decision, dated December 18, 2017, sustaining Petitioner's demotion. The AJ found that the Agency proved its charges of disrespectful conduct that disrupted the work efforts of the ITC, and that the decision to demote Petitioner fell within the tolerable limits of reasonableness. Additionally, the AJ found that Petitioner was unable to establish her affirmative defenses because she failed to show by preponderant evidence that: the Agency's decision to demote her was motivated by discriminatory animus; she was treated differently than employees outside of her protected categories; she never requested an accommodation; an accommodation would not have prevented her from engaging in the behavior at issue in the instant matter; and her refusal to engage in prohibited personnel practices caused the Agency to retaliate against her. The AJ found that the Agency presented legitimate non-discriminatory reasons for the demotion. Petitioner subsequently filed the instant petition.
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).
The Commission finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming, arguendo, that Petitioner established a prima facie case of discrimination based on disability, the Agency provided legitimate, non-discriminatory reasons for her demotion - namely that she exhibited disrespectful behavior toward another employee that subsequently resulted in a disruption to the efforts of the work unit.
All the witness testimony corroborates the IT Specialist's account of what took place in the ITC on June 23, 2016. Regarding Petitioner's position that she was treated differently than another manager who was outside her protected category with respect to these events, we agree that the comparison is improper because the comparator employee was a higher-level manager than Petitioner, the conduct was not sufficiently similar, and the comparator employee had not been disciplined twice within the nine months leading up to the June 23rd event for similar conduct. Moreover, to the extent that she claimed she was denied a reasonable accommodation, Petitioner did not establish that she ever requested an accommodation nor did she indicate what type of accommodation would have prevented the misconduct that resulted in her demotion. In sum, Petitioner presented no persuasive evidence of discriminatory animus surrounding the proposed removal and ultimate demotion. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to demote her was based on any discriminatory animus.2
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
__6/5/18________________
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 With respect to Petitioner's reprisal claim, we note that she did not state that she was retaliated against for engaging in protected EEO activity. Her contention is that she refused to engage in 4 specific prohibited personnel practices and that this was the reason she was retaliated against. Accordingly, we find that we have no jurisdiction over Petitioner's retaliation claim.
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