0320160052
10-04-2016
Beverlee C.,1 Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beverlee C.,1
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Petition No. 0320160052
MSPB No. CH0752150498I1
DECISION
On July 11, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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, we CONCUR with the MSPB's ultimate determination that Petitioner did not establish that she was discriminated against as alleged.
BACKGROUND
Petitioner worked as a Resources Management Assistant, GS-0303-07 at the Agency's Food Safety Inspection Service (FSIS) facility in Des Moines, Iowa. Petitioner alleged that the Agency discriminated against her on the bases of disability, age, and reprisal for prior and current protected EEO activity under Title VII of the Civil Rights Act of 1964 when the Agency's deciding official upheld her proposed removal, effective June 11, 2015, based on four charges relating to possession, removal, use, and failure to safeguard information protected by the Privacy Act.
In 2011, Petitioner filed a formal complaint of discrimination against the Agency. In 2014, the Agency became aware that Petitioner had taken multiple reports containing personally identifiable information (PII) of hundreds of Agency employees to her home to use as evidence in her EEO case. Petitioner obtained this information in 2010 and 2011, when she generated and printed reports from an electronic database as part of her duties, and instead of properly disposing of them took them home and stored them. After becoming aware that Petitioner had this information, the Agency conducted an investigation and instructed her to return the documents. After reviewing the documents, the Agency determined that 308 employees were affected. As a result, the Agency secured credit monitoring services for these employees at a cost of over $10,000.
Although Petitioner initially requested a hearing, she later withdrew her request and an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner's removal. The AJ found that the Agency proved all four specifications under its charge of unauthorized possession, removal, and use of, as well as failure to safeguard information protected by the Privacy Act. Additionally, the AJ found that the penalty of removal was reasonable under the circumstances. Additionally, the AJ found that Petitioner was unable to sustain her affirmative defenses.
Specifically, the AJ held that Petitioner's stated desire to gather evidence for her EEO case did not specifically fall within any of the exceptions enumerated in the Privacy Act, and although Petitioner may not have been aware that she needed authorization to remove the documents from the facility, there was no evidence she had any authorization to leave the facility with them. With respect to Petitioner's decision to remove the records containing PII from the building in an effort to safeguard them from Agency alteration, the AJ held that Petitioner could have requested a sanitized version of the information through EEO discovery procedures. The AJ noted that government property is meant to be maintained in an authorized system of records and only used for authorized purposes. Petitioner's home did not meet those requirements.
For Petitioner's affirmative defense of disparate treatment based on her age, disability, and retaliation, the AJ, among other things, applied the analytical framework set forth in the MSPB's decision Savage v. Department of the Army, 122 M.S.P.R. 612. 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. The AJ found that Petitioner did not prove her claim of discrimination based on age, disability, and/or disability. Petitioner then filed the instant petition.
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
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of age, disability and/or retaliation discrimination when the Agency removed her from her position; therefore, 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).
Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on age, disability and reprisal for prior EEO activity, the Agency provided legitimate, non-discriminatory reasons for her removal. Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. The record reveals that Petitioner obtained, retained, and transported from a government building, records containing PII in violation of the Privacy Act. Petitioner does not dispute the allegations, but instead offered an explanation for why she needed to obtain the information. Like the MSPB, the Commission finds that Petitioner did not establish that the decision to remove her was based on any asserted protected bases.
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
_10/4/16_________________
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.
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