0320170011
04-10-2017
Agnus W.,1 Petitioner, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Agnus W.,1
Petitioner,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320170011
MSPB No. DC-0432-15-0907-I-1
DECISION
On November 25, 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 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 following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that the Agency discriminated against her 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 her based on reprisal for prior protected EEO activity (2012-2015 participation in the EEO complaint process) when it removed her, 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 Management Analyst, GS-0343-12, at the Agency's Office of Disability Adjudication and Review, Office of the Chief Administrative Law Judge (ALJ), Division of Workload Management, Case Management Information Branch, in Falls Church, Virginia. Petitioner's first-level supervisor was the Branch Chief (S1). Petitioner's second-level supervisor was the Division Director (S2).
On August 28, 2014, S1 placed Petitioner on a 30-day performance assistance (PA) plan. Specifically, S1 stated that she had identified specific concerns about Petitioner's performance in the critical elements of "demonstrates job knowledge" and "achieves business results." On October 2, 2014, following the conclusion of the PA plan period, S1 placed Petitioner on a 120-day opportunity to perform successfully (OPS) plan. Specifically, S1 stated that Petitioner's performance during the PA plan period did not improve to an acceptable level. On May 1, 2015, following the conclusion of the OPS plan period, S1 issued Petitioner a notice of proposed removal for unacceptable performance. Specifically, S1 stated that Petitioner's performance during the OPS plan period did not improve to an acceptable level. On June 3, 2015, S2 issued Petitioner a decision to remove her, effective immediately.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity (2012-2015 participation in the EEO complaint process) when it removed her. On September 23, 2016, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no reprisal discrimination, and affirming Petitioner's removal.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency proved by substantial evidence that Petitioner's performance in the two critical elements was unacceptable. Citing documentary evidence and S1's testimonial evidence, the MSPB AJ found that the Agency provided approximately 20 examples of work product that was untimely or incomplete, contained multiple errors, or did not contain the required analysis and recommendations. The examples of Petitioner's unacceptable work product included, among other things, the following: (1) her caseload analysis report (CAR) for September 2014 failed to include a statement regarding the percentage of the fiscal year (FY) 2014 budget annual disposition goal being met; (2) her CAR for September 2014 failed to include a statement notifying the audience that the new ALJs' ongoing PIN/credential problems were not resolved; (3) on October 6, 2014, her draft template for the weekend overtime report (WOR) failed to include the Providence Hearing Office; (4) on October 22, 2014, her WOR failed to include a statement notifying the audience that the report contained overtime required for pulling case files; and (5) on November 18, 2014, she submitted a critical case listing report with erroneous data about the end of FY 2015 and the beginning of FY 2015, with an inappropriate description of cases as being "stagnant," without removing the name of an ALJ who had retired in May 2014, and without excluding ALJs who were "under directives." In addition, the MSPB AJ found that Petitioner provided a general denial of the alleged performance deficiencies, but did not provide detailed testimony about the work products at issue to refute the Agency's allegations.
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 prove that her prior protected EEO activity (2010-2015 participation in the EEO complaint process) was a motivating factor in her removal. Specifically, the MSPB AJ noted Petitioner's assertions, in her unsworn response to the MSPB's affirmative defense order, that management's actions related to her alleged performance deficiencies occurred in close temporal proximity to the following protected EEO activity: EEO complaints against S1 that she initiated in August 2012 and August 2014; an August 26, 2014, deposition in her EEO complaint against S1; and a May 5, 2015, hearing in her EEO complaint against S2's "close friend." The MSPB AJ found, however, that Petitioner provided no testimony about those assertions at the hearing. Moreover, the MSPB AJ found that S1 and S2 testified at the hearing that they were aware of some of Complainant's protected EEO activity, but that it had no impact on their actions.
On October 28, 2016, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition. In her petition, Petitioner submitted a copy of the MSPB's final decision but did not submit any other documentation.
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
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of reprisal discrimination when the Agency removed her; 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 her 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 she 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).
Upon review of the record, we find that the Agency did not subject Petitioner to disparate treatment based on reprisal. First, assuming, arguendo, that Petitioner established a prima facie case of reprisal discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing her; namely, her unacceptable performance during the PA and OPS plan periods in the critical elements of "demonstrates job knowledge" and "achieves business results," as described in the notice of proposed removal. Second, we find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for reprisal. We note that Petitioner did not specifically challenge any part of the MSPB's decision in her petition to the Commission; Petitioner's petition did not contain a statement of the reasons why the decision of the MSPB is alleged to be incorrect, in whole or in part, regarding the issue of discrimination. We are not persuaded, based on the documentary and testimonial evidence in the record, that the Agency removed Petitioner because of her protected 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. 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 her removal was based on reprisal for 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
__4/10/17________________
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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