0320150073
02-23-2016
Von E.,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
Von E.,1
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320150073
MSPB No. AT0752140806I1
DECISION
On June 24, 2015, 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 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly determined that the Agency did not discriminate against Petitioner on the basis of age and reprisal for prior EEO activity when it suspended him.
BACKGROUND
Petitioner worked as a Social Insurance Specialist at the Agency's Center for Disability Operations in Atlanta, Georgia. Petitioner alleged that the Agency discriminated against him on the bases of age (72) and reprisal for prior protected EEO activity when it suspended him for 30 days on June 23, 2014.
On April 16, 2014, Petitioner's first line supervisor (FS) proposed Petitioner's 30-day suspension for "Failure to follow your supervisory instructions and directives," citing eight specifications. Petitioner provided a written reply and on June 19, 2014, the deciding official (DO) upheld the suspension, effective June 23, 2014. DO reviewed the proposal, Petitioner's reply and the underlying documents to sustain all the specifications. DO also took into consideration Petitioner's past discipline of two 14-day suspensions and one 2-day suspension for failure to follow his supervisor's directives. DO found that Petitioner willfully and repeatedly failed to follow his supervisor's directives, which resulted in a serious breach of trust.
Petitioner appealed his suspension to the MSPB on July 1, 2014. Petitioner did not request a hearing and the MSPB Administrative Judge (AJ) issued an initial decision on December 22, 2014. The AJ affirmed the Agency's action and found that Petitioner did not prove his affirmative defense that he was discriminated against based on age and reprisal for prior EEO activity.
The AJ found that assuming, arguendo, that FS made the statement "it was time for him to go," this was not direct evidence of age discrimination. He noted that at best, it was circumstantial evidence of ageism. Additionally, the AJ found that Petitioner did not name any comparator employee or provide any other facts that would otherwise raise an inference of discrimination based on age. In regards to Petitioner's claim that he was retaliated against for prior EEO activity, the AJ found that Petitioner provided no evidence that either FS or DO were aware of his protected EEO activity. Additionally, the AJ held that even assuming that FS and DO were aware of Petitioner's EEO activity, he had not shown that the suspension was due to his protected activity.
On January 23, 2015, Petitioner filed a petition for review with the MSPB, which issued its Final Decision on May 27, 2015, denying the petition for review and affirming the initial decision. The MSPB affirmed that the alleged statement made was not a direct reflection of discriminatory attitude and that Petitioner showed no evidence that his managers knew of his EEO activity.
Petitioner then filed the instant petition and on July 17, 2015, Petitioner submitted comments in support of his appeal. He alleges that the MSPB erred with regard to his claim of discrimination based on age because they fragmented Petitioner's direct evidence of age discrimination. He also alleges that the MSPB did not consider his evidence of reprisal discrimination.
On July 9, 2015, the Agency filed a Brief in Opposition to the petition. Among other things, the Agency asks that we concur with the MSPB final decision finding no discrimination.2
ANALYSIS AND FINDINGS
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).
Petitioner raises additional allegations that are not related to his discrimination claim for his 30-day suspension, which will not be addressed in this decision.
Disparate Treatment (Age Discrimination)
Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). The federal sector prohibition against age discrimination requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." 29 U.S.C. � 633a(a).
Direct evidence is that evidence which, if believed, "will prove the particular fact in question without reliance upon inference or presumption...." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). Direct evidence of discrimination may include any action, or any written or verbal policy or statement made by an agency official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. See Jaakkola v Pep't of Commerce, EEOC Req. No. 05950390 (Aug. 29, 1996); Cafaro v. Dep't of the Treasury, EEOC Request No. 05920480 (Aug. 27, 1992). For example, a statement such as "Fire her, she's too old" would be direct evidence of age discrimination. Id. Evidence attacking an employer's explanation for its actions is not direct evidence, since such evidence does not prove, by itself, an employer's motivation. Caldwell v. Dep't of Veterans Affairs, EEOC Request No. 05920018 (March 12, 1992), citing Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2nd Cir. 1989). The Commission has found direct evidence of discrimination, where there was testimony by more than one witness that a supervisor made harsh, derogatory comments about the race of complainant and others, and that this discrimination contributed to the challenged employment decision. Winnie v. Federal Deposit Insurance Corp., EEOC Request No. 05890969 (June 28, 1989).
Where there is an absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves v Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas analysis to an ADEA claim). Under this analytic framework, Petitioner must first establish a prima facie case of unlawful discrimination. Reeves, 530 U.S. at 142; McDonnell Douglas, 411 U.S. at 802.
Reprisal
Petitioner can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Petitioner may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Petitioner alleges that the MSPB denied fair consideration of his age discrimination claim. Specifically, he claims that the MSPB erred when it fragmented his direct evidence of age discrimination. He states that the entire sentence reads "[o]nce during her outstation, [FS] approached me while I was seated in my cubicle and spoke to me in a boorish manner to say that I had her desk, I had her grade, and it was time for me to go." Petitioner alleges that the MSBP erred when it only considered the closing phrase of FS's statement, "it was time for me to go." Even assuming that FS made this statement, it does not demonstrate on its face age bias nor is it linked to the complained of adverse action. The entire sentence does not include any reference to Petitioner's age and was made "several years" prior to his suspension. We agree with the MSPB that Petitioner has not presented direct evidence of age discrimination.
Since Petitioner has not shown direct evidence, we will move to a McDonnell Douglas analysis of his age discrimination claim. Assuming, arguendo, that Petitioner had established a prima face case of discrimination based on age, we agree with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for suspending Petitioner. The Agency suspended Petitioner for 30 days based upon his repeated failure to follow supervisory instructions and directives. This was Petitioner's fourth suspension for the same issue.
Additionally, we agree with the MSPB that Petitioner did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. Petitioner has not provided any additional evidence that supports his claim of age discrimination, beyond his own assertions.
In his petition, Petitioner also alleges that he was not afforded fair consideration of his evidence of discrimination based on reprisal for prior EEO activity because he met his burden of establishing a prima facie case based on reprisal. While Petitioner claims that FS issued the proposed suspension approximately 20 days after he filed his appeal to the Commission, he has not presented any evidence that either FS or DO were aware of his EEO activity.3 As such, he has not established a prima face case of reprisal discrimination.
Petitioner also alleges that the MSPB erred in not holding the Agency accountable for bearing the burden to show that the Agency officials had notice of his EEO activity. We find that the MSPB did not err in finding that Petitioner bears the burden on this issue. On September 18, 2014, the AJ issued an Order and Summary of Conference Call which provided Petitioner information regarding his burden of proof for his discrimination claims. As stated above, it is Petitioner who must show that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Petitioner has not presented any evidence in support of his claim that he was discriminated against based on reprisal for prior EEO activity.
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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to suspend him was based upon age or reprisal for 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 Petitioner'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
___2/23/16_______________
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 its opposition brief, the Agency considered that Petitioner had abandoned his affirmative defense of discrimination based on reprisal because he did not include that in his initial appeal, dated June 24, 2015. However, Petitioner raised reprisal discrimination in his supporting document submitted after the Agency's opposition brief so the Commission does not consider this claim abandoned and will also address it in this decision.
3 Petitioner has a separate discrimination compliant pending before the Commission on a prior suspension.
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