0320170032
08-10-2017
Michelle G.,1 Petitioner, v. Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michelle G.,1
Petitioner,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.
Petition No. 0320170032
MSPB No. DC-0432-15-0978-I-1
DECISION
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., 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 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 her race (Asian), national origin (Chinese), age (52) and reprisal for engaging in prior protected EEO activity when it removed her from her Information Technology (IT) Specialist position, despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
Petitioner began her employment with the Agency in January 2010 as a GS-14 IT Specialist on the Departmental Offices Applications (DO Apps) team within the Office of the Chief Information Officer (OCIO). In or around June 2011, OCIO was reorganized and the DO Apps team was transferred to a new office within OCIO called Enterprise Business Solutions (EBS). EBS was responsible for the development and maintenance of business software application used by the Agency and its bureaus.
As of June 2013, an Applications and Web Services unit existed within EBS, which consisted of three components: (i) the DO Apps team, (ii) the Web Services team, and (iii) the Enterprise Content Management (ECM) team. The Web Services and ECM teams each had their own director to whom team members reported: S1 was the Director of ECM and S2 was the Director of Web Services. S3, as the Director of the Applications and Web Services unit directly supervised the DO Apps team, and S1 and S2. S3 reported to A-1, the Associate Chief Information Officer for EBS.
According to the record, A-1, in 2012, had begun working on a reorganization of the EBS. Although the formal reorganization would not take place until 2014, in May 2013, she decided to permanently realign Petitioner's position in DO Apps to ECM. Among her reasons, Petitioner had made repeated requests since 2012 to be reassigned from S3 to a different supervisor, and, in January 2013, had specifically asked to be reassigned to the ECM team under S1. With the realignment of her position, S1 became Petitioner's first-level supervisor and S3 became her second-level supervisor, effective August 2013.
Prior to August 2013, however, Petitioner was supervised and rated by S3. He rated Petitioner's performance in FY 2013 as "Fully Successful," but observed in his written performance evaluation dated January 3, 2014 that it was not very clear if she had a complete understanding and ownership of the systems," for which she was responsible. S3 also noted that "business users had to approach others for clarifications and follow-up action items," and that Petitioner worked at a task level instead of working at the project level and needed guidance and direction to make progress." He also wrote that "she had to be reminded to send status updates when there were major changes to the projects she was working on," and that she did not attempt to use the SharePoint 2010 training she received earlier.
On March 11, 2014, Petitioner signed her FY 2014 performance plan. Afterward, S1 found that Petitioner was performing at an unacceptable level in the following areas: critical element #1, Communication (written and oral); critical element #4, Technical Competency; critical element #5, Expand Shared Service Offerings; and critical element #6, Improve, Support and Maintain OCIO/EBS Program Operations. In June 2014, S1 met with Petitioner for her mid-year review and relayed to her his concerns about where he thought she was deficient in the performance of several critical elements in her performance plan. On August 27, 2014, he notified her that he was placing her on a 90-day Performance Improvement Plan (PIP) because of her unacceptable performance in those critical elements. In the PIP notice, he provided examples of her unacceptable work in the four critical elements. He also provided her with specific tasks to be completed during the PIP that would allow her to demonstrate successful performance of the critical elements in which he believed she was struggling. S1 indicated that he would be available to assist her throughout the PIP period and would meet with her at least once every two weeks to discuss her progress, the status of her PIP assignments, and any issues she was having.
On or about September 22, 2014, Petitioner contacted an EEO counselor to allege that S1 was discriminating against her because of her age, race and national origin. On or about October 6, 2014, S1 and S3 became aware of her EEO activity. On October 19, 2014, Petitioner's position was formally transferred to the ECM team. On October 21, 2014, she filed a formal complaint of discrimination. On February 2, 2015, she amended the complaint to add a claim of retaliation based on her receipt of an unsatisfactory performance evaluation in December 2014 and being disallowed from using telework in January 2015.
On March 23, 2015, S1 proposed Petitioner's removal based on her unacceptable performance during the performance improvement period. On April 10, 2015, Petitioner submitted a written response to the proposal, and on April 15, 2015, she submitted an oral response, On May 15, 2015, Petitioner submitted a second written reply. On June 29, 2015, S3 issued his decision to remove Petitioner, which was effective that day.
Petitioner filed a mixed case complaint with the MSPB. She denied that her performance was deficient as described and claimed that her performance standards were not valid and not communicated to her; the PIP did not provide her with a reasonable opportunity to improve; the PIP tasks were not related to the critical elements of her performance plan; and her removal was discriminatory based on age, race and national origin as well as retaliatory because of her prior EEO activity.
Petitioner subsequently withdrew her request for a hearing. On February 2, 2017, the MSPB Administrative Judge (AJ) issued an initial decision, based solely on the record, sustaining the unacceptable performance charge, finding no discrimination or reprisal, and affirming Petitioner's removal. Among other things, the AJ found that the Agency warned Petitioner about the inadequacies of her performance during the appraisal period; and gave her adequate opportunity to improve but she failed to do so. The AJ also noted that S1 offered to assist Petitioner in improving her performance. Petitioner acknowledged attending five PIP meetings with S1 between October and December 2014. With regard to her affirmative defense of discrimination and retaliation, the AJ found that Petitioner was unable to establish that she was discriminated against based on her race, national origin, age, or in retaliation for engaging in previous EEO activity.
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.
On March 9, 2017, the AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition. In her petition, Petitioner re-iterated many of the same arguments that were raised and addressed in the AJ's decision, among other things, placing Petitioner on a PIP while she was on a detail was irregular and unusual; that her office was located away from the rest of the unit; that the PIP was based on an IT Specialist position description not her actual duties. Petitioner also noted that the AJ mistakenly found that the record did not contain a sworn statement from her when there was such a statement contained in her EEO complaint file.
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 AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of discrimination and reprisal 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).
Race, National Origin, and Age
Upon review of the record, we find no persuasive evidence that the Agency's removal of Petitioner was based on her race, national origin or age. Assuming, arguendo, that Petitioner established a prima facie case of discrimination with respect to these bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing her; namely, her unacceptable performance over a period of months both before and after she was placed on a PIP.
We also find that Petitioner did not prove, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. In addition to placing her on a PIP and ultimately removing her, Petitioner maintained that the Agency physically separated her from the rest of the ECM team, excluded her from meetings, denied her requests for training, and denied her requests for telework. As comparators, she alleged that C1 (Caucasian, under 40); C2 (Caucasian, under 40); and C3 (Black, under 40) were treated differently than her with respect to these matters.
We note in this regard that the record indicated that Petitioner's office was located on the 11th floor not the 13th with the rest of the ECM. The Agency, however, explained that S1 requested that Petitioner's office be moved to the 13th floor but that S3, in denying the request, noted the severe space restrictions on the 13th floor. S1 noted that two new employees who joined the ECM team after the realignment of Petitioner's position were put on the 13th floor, but that was because they were new employees who did not already occupy offices and space had to be found for them. S1 also stated that Petitioner never informed him that she wanted to move to the 13th floor. S3 stated that he denied S1's request to have Petitioner relocated to the 13th floor due to severe space limitations which persisted throughout 2014.
Petitioner also alleged that beginning in March 2014, she was excluded from twice-a-week ECM Sync meetings in which S1 would meet with the ECM project managers to discuss the status of projects. The ECM project managers S1 met with were C1, C2, and C3. Petitioner was not invited until October 6, 2014. C2 admitted that he sent the invitations to the meetings, and he could not remember why he did not invite Petitioner. He also admitted that the only other project manager he excluded from the meetings was C4 (Asian, male). Petitioner maintained that S1 ratified C2's behavior. C2 testified that in early 2014, C3 reached out to him and C1 and asked to talk to them on a weekly basis. After several months of just the three of them meeting, he asked S1 to join them. C2 asserted that he did not invite Petitioner because she, Petitioner, did not work with C3 on any projects and that he already met with Petitioner on a regular basis. He also noted that Petitioner never asked to be included.
Petitioner further alleged as evidence of discrimination that S1 denied her requests for training while approving C1, C2, and C3's requests. According to Petitioner, S1 never denied the training that they requested. The AJ noted, however, that Petitioner did not indicate whether her coworkers requested the same training opportunities that she requested, or whether S1 denied to her the same training opportunities that they received. S1 stated that Petitioner was never afforded access to fewer training dollars than other employees, and received more training than some others in FY 2014.
With respect to her requests to telework, Petitioner stated that when she requested telework, S1 required her to send him an email detailing the work that she would perform, and would deny her requests if he believed that she did not have sufficient work to do. She alleged that C1, C2, and C3 did not have to send such an email, and that S1 never denied their requests to telework. Petitioner did not specify on what occasions, or how often she was denied a request to telework. S1 responded in his affidavit that all EBS staff who sought to telework were required to submit a list of the work they planned to do while teleworking, and they generally followed that policy. Petitioner sometimes followed the policy, but often did not. He also maintained that he did not generally require employees to explain how their work would fill an entire day, but he did implement this requirement for Petitioner because he believed she required a greater level of management than other ECM employees, who did not have performance problems.
S3 stated he considered allowing employees to use telework to help address the space limitations of the workplace. Petitioner requested to telework four days per week around March 2013, and S3, among others, expressed concerns about how well he could manage her work under those circumstances, since it had already become apparent that she required more supervision than others at her level. According to S3, he did not believe Petitioner had the ability to communicate effectively or otherwise adequately perform her job duties while working from home.
Based on the record before us, we find no persuasive evidence of pretext or that the Agency's removal decision was due to discriminatory animus due to Petitioner's race, national origin or age. With respect to the reasons the Agency provided for her removal, we find, like the AJ, that the record supports S1 and S3's assertion that the actions they took were based on Petitioner's performance issues. We are not persuaded by the matters Petitioner raised to establish pretext, i.e., her office location, not being invited to meetings, and the denial of training and telework. For the most part, Petitioner simply makes general and conclusory assertions without any specific evidence that would show that she was discriminated against or that these matters were related to the issue of her removal. For example, she claims that S1 denied her training requests and never denied those of her comparators, but she did not provide specific examples. S1 maintained that everyone had to provide some indication of what they would be working on when they teleworked, but without any evidence Petitioner maintained that she was the only one that he requested this information from. We do note, however, that Petitioner was the only one who was on a PIP; therefore, it would be reasonable that S1 would exercise more control over her work. Petitioner maintained that S1 used C2 to exclude her from meetings, but there was no evidence presented that established this claim. Finally, the Agency offered an explanation regarding why she was not located on the 13th floor and why others were located there. Petitioner did not establish that this was untrue.
As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that the Agency's conduct was based on her race, national origin or age.
Reprisal
Petitioner can establish a prima facie case of reprisal by showing that: (1) she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). We will assume, for purposes of this decision, that Petitioner established a prima facie case of reprisal. For the reasons set forth above, we find that the Agency has provided legitimate, non-discriminatory reasons for its removal decision. Although Petitioner certainly established that S1 and S3 were aware of her EEO activity before her removal was proposed, like the AJ, we note that Petitioner was placed on a PIP prior to her EEO activity. She was cautioned about her apparent lack of understanding and competence in her position in her FY 2013 performance appraisal, counseled for poor performance at her midyear review in June 2014, and placed on a PIP on August 27, 2014.
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 discrimination and 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 or reprisal. 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 defenses of unlawful discrimination and reprisal.
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
_8/10/17_________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320170032
8
0320170032