0320170026
04-05-2017
Bertie T,1 Petitioner, v. Steven T. Mnuchin Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bertie T,1
Petitioner,
v.
Steven T. Mnuchin
Secretary,
Department of the Treasury
(Internal Revenue Service Office of Chief Counsel),
Agency.
Petition No. 0320170026
MSPB No. AT0752150603I1
DECISION
On January 25, 2017, 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 following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that she was discriminated against.
BACKGROUND
Petitioner worked as a Customer Service Representative, GS-08, at the Agency's IRS Accounts Management Operation facility in Chamblee, Georgia. Petitioner alleged that the Agency discriminated against her on the bases of her national origin (Jamaican) when she was terminated from her position, effective May 19, 2015. Petitioner's removal was based on the charge of failing to display professional behavior when responding to a customer over the phone. The record indicated that on January 7, 2015, Petitioner took a call from a taxpayer who had just received a letter notifying her that if she failed to "call the [IRS] immediately or pay the amount due, [they] may seize" her property. On January 9, 2015, a letter was sent to the Treasury Inspector General for Tax Administration (TIGTA) stating that Petitioner had been "rude" and "ugly" to the taxpayer when she "called to get help." The complaint was referred to the Employee Conduct and Compliance Office (ECCO) office on January 29, 2015. A recommendation was made that the matter be referred to Petitioner's second level supervisor, A-2, for investigation and that a report be prepared along with a response to the taxpayer. On March 4, 2015, A-2 issued a report, after listening to the audio-recording of the January 7, 2015 telephone call. He concluded that Petitioner's tone "was abrupt, rude and demeaning to the caller," and that she "failed to provide any meaningful assistance." He also found that "when confronted by the taxpayer," Petitioner "disconnected the call." A-2 recommended that Petitioner be removed. Based on these findings, the Agency proposed Petitioner's removal.
A hearing was held and thereafter an MSPB Administrative Judge (MSPB AJ) issued an initial decision finding that Petitioner's removal was supported by the record. The MSPB AJ found that management convincingly testified that they had never heard a call as rude as Petitioner's interaction with the customer who was calling regarding imminent seizure of her property. Additionally, the MSPB AJ found that the comparators offered by Petitioner were not similarly situated to her as even though they were written up for being rude and unprofessional it was determined that it was not to the level of Petitioner's actions. Further, the MSPB AJ found that Petitioner did not prove her allegation that it was her first level supervisor, A-1, who was pretending to be the caller and who wrote the complaint note. The MSPB AJ found that there was no evidence presented that A-1 was involved in the decision to remove Petitioner. The MSPB AJ also determined that A-2's investigation was conducted pursuant to the request of the ECCO office. Therefore, a nexus of retaliation could not be shown.
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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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.
Thereafter, Petitioner sought review by the full Board. Upon review, the Board members could not agree on the appropriate disposition of Petitioner's Petition for Review, therefore, the initial decision became the MSPB's final decision.
Petitioner then filed the instant petition. On appeal, Petitioner maintains that A-1 discriminated against her and that upper management upheld that discrimination because of her national origin. Petitioner reasserts that she is certain that A-1 wrote the letter of complaint, because she recognized her handwriting, and a close associate told her that A-1 bragged about having had something to do with her termination. Petitioner asserts that A-1 disguised herself as the taxpayer to retaliate against her.
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).
Disparate Treatment
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of 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.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
At the outset, we note that in her MSPB appeal Petitioner only alleged discrimination based on national origin. In her Petition to the Commission, however, she attempted to raise additional bases. Nevertheless, we find that even if Petitioner could establish a prima facie case as to any of the bases she alleged, the Agency articulated legitimate nondiscriminatory reasons for its action, namely, that Petitioner was terminated from her position because of the unprofessional manner she handled a telephone call from a taxpayer. The record indicates that Petitioner was rude to the caller and hung up on her without helping her.
To show pretext, Petitioner argued that other customer service representatives had been written up for unprofessional behavior but were not removed. We find that the comparators offered by Petitioner were not similarly situated in that the evidence shows that management felt that her conduct was more egregious than her comparators. We also find no persuasive evidence that discriminatory animus played any role in this matter.
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 determination that Petitioner did not establish that the decision to remove her was based on her national origin.
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
_4/5/17_________________
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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