0320170029
05-15-2017
Ivy E.,1 Petitioner, v. Rick Perry, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ivy E.,1
Petitioner,
v.
Rick Perry,
Secretary,
Department of Energy,
Agency.
Petition No. 0320170029
MSPB No. DA-0752-15-0098-I-1
DECISION
On February 5, 2017, Petitioner filed a timely petition with the Equal Employment Opportunity Commission seeking 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
BACKGROUND
Petitioner worked as a GS-12 Accountant at the Agency's Southwestern Power Administration facility in Tulsa, Oklahoma. Petitioner alleged that the Agency discriminated against her on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, effective November 21, 2014, the Agency removed her for failure to follow established leave procedures and unauthorized absence.
In February 2014, Petitioner was approved for intermittent leave under the Family Medical Leave Act (FMLA) to care for her son. She requested and was approved to use full-time FMLA leave for the same reason beginning April 21, 2014. Petitioner failed to report to work when her annual allotment of FMLA leave expired on June 30, 2014. When she did not report for duty on August 4, 2014, the Agency subsequently suspended her from August 11 through August 24, 2014. Petitioner was placed in an Absent Without Leave (AWOL) status when she failed to report to work after the suspension. A-1, the head of the Division of Financial Management, issued Petitioner a Notice of Proposed Removal on October 7, 2014 based on her failure to follow established leave procedures and for unauthorized absence. On November 14, 2014, A-2, the Administrator, who was the deciding official, issued a letter of decision sustaining both charges.
Petitioner appealed the removal action, denying the charge and asserting that the removal was the result of discrimination based on disability sex, pregnancy, and in reprisal for prior EEO activity. At Petitioner's request, a hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's action, finding that the Agency sustained the charges supporting the removal action. The AJ found that record evidence showed that Petitioner was informed of the proper procedures for requesting leave, but failed to follow them. Additionally, the AJ determined that Petitioner was unable to prove the asserted affirmative defenses.
In finding no discrimination, the 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.
Petitioner subsequently sought review by the full Board, which issued a final order affirming the initial decision. Petitioner subsequently 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 AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claims 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.
To prevail in a disparate treatment claim absent direct evidence of discrimination, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas, 411 U.S. at 802-04. 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, 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, the Commission finds that even assuming, arguendo, that Petitioner established a prima facie case of discrimination based on disability, sex and reprisal, the Agency provided legitimate, non-discriminatory reasons removing her - namely that she failed to follow the appropriate procedures for requesting leave, and failed to return to work when the leave she was approved for was exhausted. The record reflects that Petitioner was absent without authorized leave on August 4 - 7; August 25 - 29; September 2 - 5; September 8 - 12; September 15 - 19; September 22 - 26; and September 29 - October 3, 2014. Petitioner acknowledges her absence on these dates.
The record further reflects that Petitioner was advised that her approved leave expired on August 3, 2014 and that she needed to return to work on August 4, 2014. While she reported to the office on August 4, 2014, Petitioner did not perform her duties. Instead she informed management that she needed leave for two years. Petitioner was again advised that her FMLA had expired and that she would need to submit the proper leave requests for any additional leave she needed. Petitioner submitted an incomplete leave request via email after business hours on August 4, 2014. She neglected to include the leave dates requested on the form, and never bothered to correct the form after being informed of the error and how to correct it. Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove her was based on discriminatory animus.
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 separation by RIF was based on sex or 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
__5/15/17________________
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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