0320120008
10-05-2012
Brenda M. Leonard, Petitioner, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Brenda M. Leonard,
Petitioner,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 0320120008
MSPB No. CH-043-211-0237-I-1
DECISION
On October 26, 2011, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect to Petitioner's allegation of race, age, and reprisal 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.
BACKGROUND
At the time of events giving rise to this appeal, Petitioner worked as a Project Manager (Asset Management), GS-1101-12, at the Agency's Chicago Multifamily Hub in Illinois. According to the position description, Petitioner's position "requires practical knowledge of a wide range of policies and procedures for the origination and servicing of the FHA multifamily mortgage insurance programs, the Section 202 and 811 Capital Advance programs, and the Section 8 Project Based programs."
On May 5, 2010, Petitioner's First Level Supervisor (S1) issued her a notice of proposed removal for unacceptable performance. Among other things, the notice cited Petitioner's unsatisfactory performance on the "technical competence" critical element of her position. The notice referenced errors made by Petitioner on eight of the 13 projects she completed during her October 2009 to April 2010 opportunity to improve performance (OIP) period. On December 2, 2010, the Associate Deputy Assistant Secretary for Multifamily Housing Programs issued a decision to remove Petitioner, effective December 3, 2010.1
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of race (African-American), age (62), and reprisal for prior protected EEO activity (EEO complaints filed in June 2008, May 2009, and July 2010) when she was removed from her position. On August 23, 2011, based on the written record,2 an MSPB Administrative Judge (MSPB AJ) issued an initial decision sustaining the unacceptable performance charge, finding no discrimination, and upholding the Agency's removal action.
In sustaining the charge, the MSPB AJ found that Petitioner's performance was unacceptable because she made processing errors on the majority of the projects she completed during the OIP period. In so finding, the MSPB AJ cited an April 29, 2010 OIP performance evaluation, in which S1 described in detail the errors made by Petitioner. In addition, the MSPB AJ noted that Petitioner did not dispute having taken the actions that S1 characterized as errors. Further, the MSPB AJ cited affidavit testimony from the Agency's clients regarding their dissatisfaction with Petitioner's work performance.
In finding no discrimination, the MSPB AJ determined that Petitioner failed to show that the legitimate, nondiscriminatory reason articulated by the Agency was a pretext for race, age, or reprisal discrimination.
Regarding race discrimination, the MSPB AJ found that Petitioner presented insufficient evidence to support her claim that three non-African-American Project Managers performed unacceptably but were not removed. In addition, the MSPB AJ found that a former employee's statement that S1 "exhibited racist tendencies" did not prove that Petitioner's removal was discriminatory because the former employee stopped working for S1 in 1993 and had never worked with Petitioner. Further, the MSPB AJ noted that, according to the Agency, a majority of the Chicago Multifamily Hub staff is African-American and no one other than Petitioner was removed for unacceptable performance.
Regarding age discrimination, the MSPB AJ found that Petitioner presented insufficient evidence to support her claim that a younger Construction Analyst performed unacceptably but was not removed. In addition, the MSPB AJ found that Petitioner presented insufficient evidence to support her claim that S1 stereotyped her as having out-of-date skills and being unable to perform her job based on her age. Further, the MSPB AJ noted that, according to the Agency, a majority of the Chicago Multifamily Hub staff is over 40 and no one other than Petitioner was removed for unacceptable performance.
Regarding reprisal discrimination, the MSPB AJ found that the statements submitted by current and former employees did not prove that Petitioner's removal was retaliatory. As to a current employee's statement that several of S1's subordinates were dissatisfied with their performance ratings in the 1990s and he had filed an EEO complaint against S1 in 1996 concerning "numerous job applications," the MSPB AJ found noted that the employee did not state that S1 was found to have retaliated against him or that he had any personal knowledge of Petitioner's case. As to a former employee's statement that management harassed her after she reported the preferential treatment of clients to the Office of Inspector General, the MSPB AJ noted that the former employee retired in 2004 and did not know Petitioner. As to a union representative's statement that management "will oftentimes use a confrontation of this nature to make an example of what can happen to employees if they file complaints against management," the MSPB AJ noted that the union representative did not claim that S1 retaliated against any specific individual for prior protected EEO activity.
Petitioner did not file a petition for review by the full Board and the MSPB AJ's initial decision became the MSPB's final decision on September 27, 2011. Petitioner then filed the instant petition.3
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).
Upon review of the record, we concur with the MSPB's finding of no discrimination. Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the bases of race, age, and reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal; namely, Petitioner's unacceptable performance during her OIP period, as reflected by the processing errors she made on numerous projects.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Petitioner to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for race, age, or reprisal discrimination. Typically, pretext is proved through evidence that the agency treated the employee differently from similarly situated employees or that the agency's explanation for the adverse action is not believable. See EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, at 15-V.A.2 (Apr. 19, 2006); EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.E.2 (May 20, 1998).
Here, we agree with the MSPB that Petitioner failed to demonstrate that, more likely than not, the Agency's reason for her removal was a pretext for race, age, or reprisal discrimination.
First, the record contains no evidence that the Agency treated Petitioner differently from other employees (non-African-American, younger, or without prior EEO activity) who were charged with unacceptable performance on a critical element of their position. Although Petitioner alleged that the Agency did not remove other employees who performed unacceptably, she presented insufficient evidence that those employees made errors that were comparable in scope, seriousness, and number. In addition, there is no indication in the record that any of those employees made similar errors during an OIP period.
Second, Petitioner has not shown that the Agency's reason for his removal is not believable. Specifically, the Agency has consistently stated, as evidenced by the testimony of S1 and the language in the notice of proposed removal, that Petitioner's removal was based on her unacceptable performance during the OIP period. In addition, while Petitioner disagreed with S1's characterization of her actions as errors, she has not shown that S1 was motivated by discriminatory animus in criticizing her performance. Further, we note that the record contains affidavit testimony from four of the Agency's clients regarding Petitioner's poor performance. Client A, who worked with Petitioner on three of the OIP projects, averred that Petitioner's "technical ability was limited, and often clouded by issues that were irrelevant to the processing of the loan application." Client B, who worked with Petitioner on two of the OIP projects, averred that Petitioner's "poor technical abilities created a lot of unnecessary work for the underwriter" and that Petitioner "did not understand the process and did not follow regulations and handbook requirements." Client C averred that, after the problems he encountered with two projects Petitioner worked on in 2009, he wrote a letter to management requesting that she never be assigned to any of his projects again. Client D averred that Petitioner's "technical ability was not very good" and that, when dealing with her, he "would either use kid gloves, go around her and go to her supervisors for assistance, or ask not to work with her." Clients A, B, C, and D all averred that Petitioner was not technically competent in her position.
We note that, at all times, Petitioner retains the burden of persuasion, and that it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 518 (1993). We agree with the MSPB that Petitioner has not done so here. Based on the above, we agree with the with the MSPB that Petition has not shown that the Agency discriminated against her on the bases of race, age, or reprisal when it removed her from her Project Manager position.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/5/12________________
Date
1 The Director of the Chicago Multifamily Hub was to be the deciding official in Petitioner's proposed removal. The Agency granted Petitioner's request to have her proposed removal decided at the Agency's headquarters in Washington, D.C.
2 Petitioner requested a hearing, but subsequently withdrew her request.
3 Petitioner filed her petition on October 26, 2011. Petitioner filed supporting statements on December 6, 2011 and June 20, 2012. The regulation set forth at 29 C.F.R. � 1614.304(b)(3) requires the concurrent submission of the petition for review and the supporting statement. Accordingly, the Commission declines to consider Petitioner's statements filed on December 6, 2011 and June 20, 2012, as they were not timely filed as part of her petition.
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0320120008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0320120008