0320150008
04-09-2015
Petitioner, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320150008
MSPB No. DC-0432-13-0106-I1
DECISION
On September 3, 2014, Petitioner petitioned the Equal Employment Opportunity Commission to review a Final Order of the Merit Systems Protection Board (MSPB) concerning his 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.
ISSUE PRESENTED
Whether the MSPB erred in finding no discrimination regarding the Agency's removal of Petitioner?
BACKGROUND
Petitioner worked as a Title 16 Claims Representative at the Agency's field office in Sanford, NC. Claims representatives interview Social Security applicants and explain all available options, among other duties. They also examine applicants' evidence and adjudicate their entitlement to Social Security benefits. Claims Representative Position Description, Tab 13, at 80. When Petitioner began working as a GS-9 Claims Representative in 2009, he worked under a male first-level supervisor and was assigned to a female mentor (First Mentor), who was a Technical Expert. Petitioner and the First Mentor did not get along. For example, one coworker, a male claims representative in the Sanford office, observed that the First Mentor often spoke to Petitioner in a demeaning way:
She speaks down to him almost like she is talking to a child. I've heard her speak to him in a demeaning manner. I would see him go past my cubicle to ask [the First Mentor] for assistance and she would say things like she was busy; she did not have time; why didn't you do this before you brought it to me? -and just blow them off. I've mentored four people and I would have never talked to them in that way. She has only mentored one person and that was [Petitioner] . . . .
Coworker affidavit, Tab 12, at 15.
Six months later, Petitioner requested to his second-level male supervisor to be assigned to a new mentor. The request came as no surprise to Petitioner's first-level supervisor, who averred:
I know [the First Mentor] did not like [Petitioner] while she was his [Technical Expert]. She told me so but did not say why. I believe that is why he requested a new mentor because he probably felt she did not like him. [The First Mentor] is not one to hold back her tongue. I still have a voice message in which she called to tell me something had done and she ended it with "I know if I'm wrong you will correct me!" It was said in such a negative tone. Affidavit, Tab 11, at 34.
The second-level supervisor granted Petitioner's request, and he worked with a different female mentor (Second Mentor). The Second Mentor reported that it was difficult at times to mentor Petitioner:
It was difficult to work with [Petitioner] as his mentor. I felt I had to tell him things over and over again. I had some conflict with him because I would get frustrated because he would not pay attention and he did not keep examples like I asked him to do. I told him, I wrote it up and I showed him and I would still have to repeat the same concepts. I know he is an intelligent man but some things he just had a hard time catching on. I would also be frustrated with myself because I found myself repeating things over and over. He was getting better by the time I stopped mentoring him and it seemed as though he started to get it. Second Mentor affidavit, Tab 12, at 26.
Staffing Changes and First Performance Assistance Plan
In March 2010, the office saw multiple staffing changes, resulting in Petitioner's first-level supervisor and First Mentor swapping roles. Initially, the Agency promoted Petitioner's first-level supervisor to Assistant District Manager, and then promoted the First Mentor to Operations Supervisor, thereby becoming Petitioner's new first-level supervisor. But then the former first-level supervisor returned to the Sanford office. Because his former position, Operations Supervisor, was now occupied by the First Mentor, he had to take the First Mentor's old job of Technical Expert, and was assigned to mentor Petitioner (Third Mentor).
In April 2010, Petitioner's new first-level supervisor (aka First Mentor) placed Petitioner on a Performance Assistance Plan. But two months later, in June 2010, she saw enough improvement in his work performance to take him off the Performance Assistant Plan. Petitioner was promoted to the GS-11 grade level in August 2011. Tab 11, at 15.
The Third Mentor (Petitioner's former first-level supervisor) disagreed with this promotion decision, feeling that Petitioner was still not ready to take on a full GS-11 journeyman workload:
At the time I did not feel [Petitioner] was ready for the GS11 promotion . . . . He was hired at a higher grade than most people brought in and I think it is unreasonable to expect he should be ready to go to journeyman level grade within a year. He did come in as a [GS-9] but being hired at that grade does not compensate for the lack of knowledge. There is a lot of stuff to learn in that time frame. . . . When he finally got the GS11 in a few months later, that was [the new first-level supervisor's] decision. . . . In my opinion [Petitioner] is still not ready. Prior to his promotion he was put on performance plan and he was supposed to meet those standards before he was promoted. I guess in [the new first-level supervisor's] opinion he met those standards and she felt he was ready. In my opinion [the new first-level supervisor] did not have high quality standards and she was evaluating someone without high quality standards. When you get promoted at that point you are to be a full self sufficient journeyman. I just did not feel he was there.
Third Mentor affidavit, Tab 11, at 34.
Strained Work Relationships and Increased Stress
The first-level supervisor maintained that Petitioner's work performance declined from March 2011 to June 2011. During this time, she critiqued his work performance and found out he had hypertension. According to the first-level supervisor, in April 2011, she saw Petitioner sleeping at his cubicle. Hearing Transcript, February 26, 2013, at 54. She asked him if he was okay, and he informed her that he was drowsy, and that his drowsiness was due to his hypertension and new medication. Id.
The first-level supervisor's critique of Petitioner's performance strained their relationship and, according to Petitioner, exacerbated his symptoms. Petitioner saw a physician for depression and anxiety due to the stress of dealing with the first-level supervisor. For example, in a June 2011 progress note, the physician wrote that Petitioner felt he was being targeted by his supervisor on a daily basis, who was making inappropriate comments and creating a hostile working environment. "[H]e reports being unable to concentrate, afraid to make mistakes or call customers, . . . sleep is irregular, . . . sometimes doesn't get back to sleep, feels irritable and angry, becoming isolated, not speaking to others, . . . frequent difficulty with maintain focus having random and/or racing thoughts, memory impaired . . . ." Tab 29, at 22. One trigger for his depression was the first-level supervisor's habit of "making remarks that denigrates males, attacks males competency, establishing demanding and unrealistic deadlines." Id.
One June incident appeared to damage the working relationship beyond repair. The first-level supervisor described the incident as follows:
On June 17, 2011 a client's mother came into the office and complained that she had not received any benefits for her child and that her direct deposit information was not processed as [Petitioner] had told her. [Petitioner] was off that day, so I went to his desk to look for the direct deposit slip so I could input the information. I found the direct deposit slip and sure enough, it had not been inputed. I went ahead and processed it that day. While I was looking for the direct deposit slip on [Petitioner's] desk, I found other items that had not been completed as well. I organized them and left them on his desk. I made copies of these items . . . . When [Petitioner] came in the next day on Saturday to work overtime, he came to my cubicle and just stood there looking at me without saying anything. I told him that I knew why he was standing there, because he had seen that his desk had been reorganized. I told him what had happened and I explained to him about the client that came into the office, and I had to go through his desk in order to resolve the issue. I explained to him that I saw the other items that were backlogged and I explained to him that he could not keep items on his desk that long without being processed. He turned around and went right back to his desk without saying a word.
First Mentor affidavit, Tab 11, at 16.
On June 24, 2011, the first-level supervisor spoke with Petitioner about his work performance, especially about the backlog that she had found on his desk. According to the first-level supervisor, the meeting did not last long:
[Petitioner] became irate and began accusing me of picking on him and targeting him. . . . He ended the meeting by walking out. I still say good morning to him and most of the time he will reply but that is the extent of our conversation. [Petitioner] sent me an email saying I was being hostile and that my accusations were unfounded and he did not want to speak to me unless he had a union representative present. In some of his emails, he has threatened me with going to the EEO/Union/Attorney. Id. at 17.
From then on, Petitioner and the first-level supervisor communicated primarily either by email or instant message.
Several other people had strained working relationships with the first-level supervisor. For example, Petitioner's second-level supervisor admitted, "My relationship with [first-level supervisor] has been strained at times." Second-level supervisor affidavit, Tab 12, at 45.
One of Petitioner's coworkers, a male claims representative, averred that he had heard the first-level supervisor once say, "Men may rule the world but women ruled SSA." "We all heard that comment . . . . I heard her say to [the second-level supervisor] once when we were in a break room, that she would have his job next. She is always blurting something out like that. She is loud and you always know when she is in the office." Tab 12, at 16-17.
The Third Mentor averred that "it was an awkward situation for everyone." Tab 11, at 34. In his affidavit, he recalled hearing the first-level supervisor say, "This is not the Boy's Club here anymore, it's the Girl's Club." Id. at 35. He added that the first-level supervisor "had kind of an in-your-face style of correcting people and I'm sure it could have been interpreted as hostile. I'm also sure that her own lack of expertise created situations where she came across as hostile because she simply did not know the program matter well herself." Id. at 34.
One example of this later situation occurred when the first-level supervisor and Petitioner's female Second Mentor had a falling out:
I've had words with [the first-level supervisor] in which [Petitioner] may have witnessed. [The first-level supervisor] was saying something to [Petitioner] about me in that I felt she was really directing the comments at me and not him. She was telling him to not do something that she had perceived me do. Tab 12, at 25.
Another female coworker of Petitioner's opined that the first-level supervisor "has a very strong personality," "is very new at management and has a lot to learn in terms of how to treat others and manage people." Tab 11, at 43.
In June 2011, Petitioner filed an EEO complaint. February 27, 2013 Hearing Transcript, at 61.
Reasonable Accommodation Requests
On August 1, 2011, Petitioner wrote that the first-level supervisor was harassing him, and that he was waiting to hear from the union, human resources, and the EEOC for further advice. On September 1, 2011, he requested to transfer to another office and to change supervisors, as reasonable accommodations for his service-connected disability. On September 2, 2011, Petitioner's second-level supervisor denied his requests, writing that "an employer does not have to provide an employee with a new supervisor as a reasonable accommodation." Tab 12, at 77.
A few days later, on or around September 7, 2011, the first-level supervisor placed Petitioner on a 30-day Performance Assistance plan.
By mid-September 2013, Petitioner's symptoms had grown worse. He told his physician that he experienced increased depression, anxiety, lethargy, anger, and social isolation. He reported decreased interest and motivation. He had become more irritable, experienced mood swings, and felt that his anti-depressants were not working. Tab 29, at 21.
On September 13, 2011, Petitioner filed an EEO complaint. Complainant v. Social Security Admin., Agency No. ATL-11-0769-SSA, Tab 12, at 76.
Opportunity To Perform Successfully Plan
On October 19, 2011, the first-level supervisor wrote to Petitioner that he failed to complete the Performance Assistance plan, and that she would develop an Opportunity to Perform Successfully plan to address his performance deficiencies.
On October 27, 2011, the first-level supervisor met with Petitioner about placing him on an Opportunity to Perform Successfully plan. According to the first-level supervisor, Petitioner started to yell and say that "he wanted out of that office, and that I was targeting him, and that he would seek . . . complaints against me." February 26, 2013 Hearing Transcript, at 53. At the meeting, Petitioner informed the first-level supervisor that she was aggravating his service-connected disabilities. Id. In an email to the first-level supervisor, Petitioner reiterated his belief that she was harassing him aggravating his service-related disability. He requested to be transferred to a different office. Tab 12, at 65.
The next day, the first-level supervisor placed Petitioner on an Opportunity to Perform Successfully plan, in which he had 120 days to improve his performance to a successful level. Tab 12, at 66. On November 30, 2011, she met with him to review his progress, again informing him about his performance deficiencies.
Closing-Time Incident and Detail to Another Office
On December 2, 2011, the first-level supervisor wrote about an incident:
On December 01, 2011 at 5:30pm [another individual] who was scheduled to close the office that day, stated that she was leaving. I walked over to [the individual] to tell her that I was staying late and would close the office. I then noticed that the housekeeping worker was still in the building. The housekeeper stated that he would be finished in about 5 minutes.
At 5:35pm, I walked to the back door to check the parking lot lights to make sure they had come on since we had been having problems with the lights coming on at the designated time. When I opened the door, I saw that [Petitioner's] truck was still in the parking lot. I turned around and I could not see him, I could only hear papers being moved around.
I immediately became concerned because it was after 5:30pm and [Petitioner] was at his desk, and I could not see what he was doing.
The housekeeper was in the parking lot getting ready to leave, I asked the gentlemen if he would wait with me in the office until [Petitioner] left. We walked around checking the inside of the building. The housekeeper's ride was waiting for him in the parking lot and he had to leave.
At approximately 5:40pm, [Petitioner] had not yet left the building. I became afraid for my safety because only [Petitioner] and I were left in the building, and because of the aggressiveness, he had shown towards me in the past. At this point, I locked myself in [Petitioner's second-level supervisor's] office because I was afraid of what could happen. I felt intimidated and was afraid for my safety. This was the first time [Petitioner] had stayed in the office after 5:30pm. Previously he had always left at his designated time. At this time I proceeded to call . . . my Level I Manager.
I explained to her what was happening and shared my concerns about my safety with her. She instructed me to take the phone to [Petitioner]. He left the building at approximately 5:50pm. [The Level I Manager] stayed on the phone with me until I left the building and got into my car.
Tab 32, at 113.
Petitioner's third-level supervisor testified that she was very concerned that the situation was escalating and getting out of hand. Tab 3, Hearing Transcript, at 244. She did not think Petitioner could continue the Opportunity to Perform Successfully plan in the Sanford office. "[W]e needed to move [Petitioner] to the Fayetteville office." Id. at 244-245. She felt the move would be in his "best interest," for it would give him a chance to successfully complete the performance improvement plan. Id. at 245, 246. "And that we not have anymore issues that might be considered a hostile work environment, or that he considered a hostile work environment." Id. at 245.
On December 3, 2011, Petitioner's second-level supervisor "detailed" Petitioner to the Agency's field office in Fayetteville, NC. Tab 12, at 30. There Petitioner worked under a different first-level supervisor to complete the Opportunity to Perform Successfully plan. Id. at 28. In January 2012, Petitioner's former first-level supervisor (aka First Mentor) was also moved to the Fayetteville, NC office and worked as a Technical Expert. She had no further role in his Opportunity to Perform Successfully plan.
During the remainder of the Opportunity to Perform Successfully plan, Petitioner's interim first-level supervisor noted continued performance problems with Petitioner. Eventually, on April 10, 2012, the interim first-level supervisor proposed to remove Petitioner due to unacceptable performance, and formally removed him on May 16, 2012.
On July 6, 2012, Petitioner filed an EEO complaint, alleging discrimination on the bases of age (48), race (Black), sex (male), and reprisal for prior EEO activity when:
1. the Agency removed him on May 16, 2012;
2. since December 5, 2011 through May 16, 2012, the Agency did not provide him with an opportunity to take additional Claims Representative training, e.g., the 4-month initial claims training provided when hired.
Complainant v. Social Security Admin., Agency No. ATL-12-0620-SSA.
EEO Complaints
Over the course of his employment, Petitioner filed at least four EEO complaints: Agency Nos. ATL-11-0079-SSA, ATL-11-0769-SSA, ATL-11-0889-SSA,1 and ATL-12-0620-SSA.
In Complainant v. Social Security Admin., EEOC Hearing No. 430-2012-00158X, an EEOC Administrative Judge (EEOC AJ) issued two orders on September 19, 2012. The first order consolidated three of Petitioner's EEO complaints (Agency Nos. ATL-11-0079-SSA, ATL-11-0889-SSA, and ATL-12-0620-SSA).
According to the EEOC AJ, Petitioner alleged in those three complaints that the Agency subjected him to discrimination on the bases of age (48), race (Black), sex (male), and reprisal for prior EEO activity when:
1. On August 18, 2011, the Agency denied him a performance award;
2. On September 2, 2011, the Agency placed him on a Performance Assistance Plan;
3. On September 2, 2011, the Agency denied his reasonable accommodation request for a transfer;
4. He was subjected to hostile work environment harassment;2
5. from December 5, 2011 to May 16, 2012, the Agency did not provide him with an opportunity to take additional Claims Representative training, e.g., the 4-month initial claims training provided when hired;
6. on May 16, 2012, the Agency removed him.
The second order dismissed Petitioner's hearing request before an EEOC Administrative Judge because the consolidated matter was now a mixed-case complaint. The EEOC AJ remanded the consolidated matter to the Agency for processing under the mixed-case regulations. On November 6, 2012, Petitioner appealed the removal to the MSPB. Tab 10, at 5.
MSPB Proceedings
a. Prehearing Submissions
On December 14, 2012, the Agency electronically submitted "significant portions of the Reports of Investigation (ROIs) for Appellant's first two EEO complaints and numerous documents relevant to Appellant's third EEO complaint challenging his removal and the training he received prior to his removal."3 Tab 5, at 2. The reason why the Agency did not submit the Report of Investigation for the third EEO complaint at that time was because it had not yet finished investigating the discriminatory removal claim. Two weeks later, on December 28, 2012, the Agency filed a motion to suspend case processing for 30 days, because it was still trying to complete investigation of the third EEO complaint. Tab 15, at 1.
On January 2, 2013, the MSPB Administrative Judge (MSPB AJ) denied the Agency's motion to suspend case processing because (1) Petitioner opposed the suspension; and (2) witnesses necessary to the discriminatory removal claim could testify at the Board hearing. Tab 17, at 1.
On January 16, 2013, the MSPB AJ issued an order setting forth the burdens of proof concerning the affirmative defenses of discrimination on the bases of disability, race, color, sex, age, and retaliation for prior EEO activities. Tab 35, at 1. The MSPB AJ held a prehearing telephonic conference that same day, and according to the Agency's written summary of the conference, Petitioner raised the following affirmative defenses:
The appellant is alleging the agency retaliated against him because of his prior EEO activities by removing him.
The appellant is alleging disability discrimination, in that he was disabled based on the following conditions: anxiety, depression, PTSD, and a mood disorder. Appellant is alleging that the agency failed to reasonably accommodate these disabling conditions. Appellant did submit a reasonable accommodation request for a new supervisor. Appellant will have to show he had these conditions, the agency was aware of these conditions prior to his removal, he requested the reasonable accommodation for all of these conditions, and the agency was not reasonable in denying the requested accommodation.
The appellant is alleging discrimination based on race (African-American), color (black), age (49), sex (male): The appellant is alleging discrimination under two theories:
a. Disparate treatment-the appellant is alleging the agency treated other employees of other races, colors, ages, and sex differently from himself. The Judge directed Appellant to e-file . . . by January 17, 2013, a list of names of any employees whom Appellant is alleging were of a different race, color, age, or sex from Appellant, who were treated differently from him; as well as a synopsis of how they are similarly situated to Appellant (including that they did not have fully a successful performance on the critical elements) and how they were treated differently from him.
b. Pretext-the appellant is also alleging that the real reason the agency removed him was because of his race, color, age, and sex. . . .
The appellant clarified that there is . . . [a] claim . . . [of] retaliation for his EEO activities. We took a significant period of time clarifying the numerous affirmative defenses that the appellant raised in his appeal form, and these affirmative defenses that are identified and clarified in this summary are the only affirmative defenses that will be adjudicated. Tab 36, at 6-7.
Petitioner requested 7 witnesses to testify at the hearing. The MSPB AJ approved 5 of them:
* Petitioner's third-level supervisor;
* Petitioner's second-level supervisor;
* Petitioner's former first-level supervisor (the First Mentor);
* A male Title 16 Claims Representative in the Fayetteville field office;
* A male Claims Representative in the Sanford field office.
The MSPB AJ denied Petitioner's request to call a Title 16 Technical Expert and the North Caroline Area Director. Id. at 7-8.
b. MSPB AJ Hearing
A hearing was held on February 26 and 27, 2013. Witnesses who testified at the hearing included Petitioner, the First Mentor, second-level supervisor, third-level supervisor, and the interim first-level supervisor who eventually removed Petitioner.
During the hearing, the First Mentor denied uttering unwelcome verbal comments that could be remotely thought of as racist or sexist. February 27, 2013 Hearing Transcript, at 178. Although Petitioner testified that he had heard the First Mentor verbally disapprove of his dating women of other races, and that she had said to him that women ruled the Agency, none of his other witnesses testified at the hearing about the First Mentor's alleged sexist or racist comments. One of Petitioner's witnesses, a male Title 16 Claims Representative at the Fayetteville office, testified only about the disparate treatment Petitioner allegedly received in terms of work assignments while detailed to the Fayetteville office. February 27, 2013 Hearing Transcript, at 157. After this witness finished testifying, Petitioner's non-legal representatives informed the MSPB AJ that they did not wish to call the male Claims Representative in the Sanford field office, even though in his EEO affidavit he corroborated Petitioner's account about the First Mentor uttering "women ruled the Agency" and other comments. At the hearing, Petitioner's non-legal representatives explained that they did not wish to call this Claims Representative as a witness "since the issues are in the Fayetteville office" about Petitioner's removal. February 27, 2013 Hearing Transcript, at 174.
In addition, when Petitioner tried to testify during the hearing about how his physical and mental impairments affected his work performance, the MSPB AJ cautioned: "I will look at your alleged disability in terms of your reasonable accommodation claim and your pretext claim that that's . . . one of the real reasons why the Agency removed you, but if you now are trying to say you had a disability to cause you not to be able to perform, it's not before me. And it's too late to raise it." February 27, 2013 Hearing Transcript, at 123.
In Petitioner's closing remarks, Petitioner's non-legal representatives disputed the First Mentor's testimony that she had never said anything that could be remotely thought of as sexist. They highlighted the EEO affidavits of the Third Mentor and the male Claims Representative in the Sanford office, who both averred to personally hearing the First Mentor make objectionable, sexist comments about the primacy of females at the Agency. Tab 48, at 13.
c. MSPB AJ's Initial Decision
On May 23, 2013, the MSPB AJ issued an initial decision. Initially, the MSPB AJ found that the Agency met its burden of proving that Petitioner's performance under at least one critical element remained unacceptable after he was given a reasonable opportunity to perform. The AJ noted that the interim first-level supervisor provided numerous examples of how Petitioner consistently failed to retain knowledge from his training, make accurate inputs, maintain the integrity of the work processes, provide clear and accurate written and oral information that demonstrated sound reasoning. The MSPB AJ did not find Petitioner's explanations for the specific examples cited by the interim first-level supervisor to be more persuasive than the Agency's evidence and argument.
1) Reprisal
Next, the MSPB AJ considered Petitioner's affirmative defenses. First, the MSPB AJ analyzed whether the Agency removed Petitioner in retaliation for his prior EEO activities. The MSPB AJ found that even though management was aware of Petitioner's prior EEO activities, their conduct with regard to Petitioner's performance issues (such as the First Mentor's determinations that he had performance problems and actions to correct those problems) were proper, and did not indicate any retaliatory motive.
2) Disability
Next, the MSPB AJ appeared to consider whether the Agency removed Petitioner because of his disabilities. The MSPB AJ found that the disability claim failed, because there was no evidence that the management officials, who were involved in the removal action, were aware of all of Petitioner's medical conditions (hypertension, anxiety, and depression) before they took action to remove him. At most, the MSPB AJ found that management officials knew only of Petitioner's hypertension.
In addition, the MSPB AJ determined that even assuming that Petitioner was a qualified individual with a disability, the Agency properly denied Petitioner's accommodation request to be assigned a new supervisor, because employers never have to provide a new supervisor as a reasonable accommodation. Overall, the MSPB AJ concluded that Petitioner failed to establish that the Agency failed to reasonably accommodate him.
3) "Disparate Treatment Theory" Based on Race, Color, Age, and Sex
i. Removal
Next, the MSPB AJ analyzed whether the Agency discriminated against Petitioner based on race (African-American), color (black), age (49), and sex (male) "under the theories of both disparate treatment and pretext." Under the "disparate treatment theory," the MSPB AJ found that the 17 employees identified by Petitioner as receiving better treatment than him, were not similarly situated to Petitioner. The MSPB AJ reasoned that none of the comparators had any adverse actions taken against them based on unsatisfactory performance to compare to Petitioner's situation. In addition, the third-level supervisor testified that all of the comparators were either trainees when they experienced performance issues (and had not been promoted to the GS-11 journeyman level), did not have performance problems, or corrected their performance issues when they were brought to their attention.
The MSPB AJ also noted that the second-level supervisor testified that he had delayed promoting Petitioner to the GS-11 level because he had struggled with his work, but that the First Mentor decided to promote Petitioner to GS-11 in August 2010. After Petitioner was promoted, he continued to struggle with his work material, making documentation and payment errors, and creating a backlog.
Overall, the MSPB AJ found that management articulated a legitimate, nondiscriminatory reason for removing Petitioner (unsatisfactory performance in a critical element of his position). The MSPB AJ found that Petitioner failed to show that the named employees were similarly situated to him but treated differently, despite the same type and extent of performance issues. Petitioner did not identify any individual whose performance was as poor as his and who was not placed on an Opportunity To Perform Successfully plan.
ii. Training
For Petitioner's allegation that he was denied training, the MSPB AJ found little factual evidence to establish this allegation. The MSPB AJ found credible the second-level supervisor's testimony that Petitioner never requested additional training prior to his placement on an Opportunity To Perform Successfully plan, and instead consistently told the second-level supervisor that he was performing well. The MSPB AJ found that both the First Mentor and the interim first-level supervisor provided other forms of training to Petitioner, and that Petitioner received training from the Second and Third Mentors.
Under the "disparate treatment theory," the MSPB AJ found that two claims representatives, who were permitted to repeat the initial 4-month Claims Representative training class, were not similarly situated to Petitioner. The MSPB AJ credited the third-level supervisor's testimony that the two comparators were Title 2 trainees, not a Title 16 journeyman like Petitioner.
In addition, the MSPB AJ determined that Petitioner articulated a nondiscriminatory reason for why the First Mentor allegedly provided him with inadequate training: she did not know the correct information. At the hearing, Petitioner testified that the First Mentor was not qualified to train him.
4) "Pretext theory" of Discrimination Based on Race, Color, Age, and Sex
Next, the MSPB AJ analyzed whether the Agency discriminated against Petitioner based on his race (African-American), color (black), age (49), and sex (male) under what she called "the theory of pretext."
The MSPB AJ cited the following as Petitioner's evidence of alleged discriminatory pretext:
* Petitioner did not receive an Exemplary Contribution or Service Award in August 2011;
* The First Mentor harassed Petitioner by going through his desk, removing and planting documents, and copying the second-level supervisor on all emails sent to him;
* The First Mentor made comments to him about women controlling the Agency and Petitioner's interracial relationship.
The MSPB AJ found that the Agency articulated a legitimate, nondiscriminatory reason for why Petitioner did not receive an Exemplary Contribution or Service award. The second-level supervisor testified that Petitioner did not meet the guidelines for receiving such an award, in that he did not have an Element Average of 4.0, and he had not performed any extraordinary contribution that would merit the award.
The MSPB AJ found nothing improper about the First Mentor going through Petitioner's desk on one occasion. As explained by the First Mentor, a customer complained to her about not receiving benefits from Petitioner. Because Petitioner was out of the office, the First Mentor searched his desk to find that customer's bank information. The MSPB AJ also found nothing improper about the supervisor looking at work left on Petitioner's desk to determine its status. Nor did the MSPB AJ find evidence indicating that the First Mentor planted documents on Petitioner's desk. The First Mentor testified that she treated everyone the same when she copied the second-level supervisor on all email messages she sent to Petitioner and others.
The MSPB AJ found that the First Mentor did not make any sexist or racist remarks because (1) the First Mentor denied making such comments, and (2) the second-level supervisor testified that Petitioner never complained to him about any such comments. The MSPB AJ found it significant that Petitioner chose not to complain about these racist or sexist comments to the second-level supervisor, when he had previously complained to him about other forms of harassment from the First Mentor.
Finally, the MSPB AJ noted that several other employees had commented on Petitioner's deficient performance, including customers and coworkers. Therefore, the MSPB AJ concluded that Petitioner failed to show that the Agency's articulated reason for removing him (poor work performance) was a pretext for discrimination.
d. MSPB Final Order
Petitioner sought review by the full Board. Petitioner's non-legal representatives argued that evidence from the Report of Investigation for Agency No. ATL-11-0769-SSA was not allowed into evidence during the hearing, and such evidence (like affidavit testimony from a male Claims Representative at the Sanford office and the Third Mentor) would have exposed the First Mentor's sexist and racist comments and her daily harassment of Petitioner. Petitioner's non-legal representatives asserted that the MSPB AJ refused to hear two years of evidence that occurred at the Sanford office during the hearing.
On August 7, 2014, the Board issued a final order. The Board found that the record was extensively developed on the issues of discrimination and retaliation for prior EEO activity, and that the MSPB AJ addressed those issues at length in the initial decision, The Board determined that the MSPB AJ considered the entire body of evidence, drew appropriate inferences, and made reasoned conclusions on issues of credibility.
Additionally, the Board found unavailing Petitioner's argument that the Report of Investigation for Agency No. ATL-12-0620-SSA contained new and material evidence that was not available when the record was closed. The Board reiterated that the record was extensive and contained testimonial evidence of the discrimination issues that were fully addressed by the MSPB AJ. The Board pointed out that it was Petitioner who sought to consolidate all of his EEO complaints and opposed the Agency's motion to suspend case processing until the Report of Investigation for that complaint was completed. Overall, the Board found no reason to disturb the MSPB AJ's initial decision.
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).
Reasonable Accommodation
Individuals with disabilities may face workplace barriers that keep them from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed.
The Rehabilitation Act requires federal agencies to provide reasonable accommodations to qualified individuals with disabilities, who are employees or applicants for employment, unless to do so would cause undue hardship. Reasonable accommodations remove workplace barriers for individuals with disabilities. Reasonable accommodations include modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.
Here, Petitioner requested the Agency to change his supervisor as a form of reasonable accommodation because his supervisor's conduct exacerbated his preexisting medical conditions, including hypertension, stress, anxiety, and depression.
We have explained in the past that an "employer does not have to provide an employee with a new supervisor as a reasonable accommodation." EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002, Question 33 (Oct. 17, 2002). "Nothing . . . , however, prohibits an employer from doing so. Furthermore, although an employer is not required to change supervisors, the [Rehabilitation Act] may require that supervisory methods be altered as a form of reasonable accommodation. Also, an employee with a disability is protected from disability-based discrimination by a supervisor, including disability-based harassment."
Here, it does not appear that Petitioner requested any form of accommodation other than changing to a new supervisor. He did not ask that the first-level supervisor adjust her supervisory methods, such as communicating assignments, instructions, or training by the medium that is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail). Because the only accommodation Petitioner sought was to be provided a new supervisor, we find that the MSPB correctly found that Petitioner was not denied a reasonable accommodation in the form of being provided a new supervisor.
Disparate Treatment
Here, we must determine whether the MSPB erred in determining that the Agency did not discriminate against Petitioner on the bases of race (African-American), color (black), age (49), sex (male), disability, and reprisal for prior EEO activity when it removed him.
Contrary to the MSPB AJ's suggestion that "disparate treatment" and "pretext" are two separate "theories" of discrimination, we clarify that they are not. Disparate treatment occurs when an employer treats some individuals less favorably than other similarly situated individuals because of a prohibited basis, whether it their race, color, religion, sex, national origin, disability, or other basis.
Generally, to prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Potential evidence of disparate treatment include, but are not limited to, comparative treatment evidence, discriminatory statements made by decision makers or persons influential to the decision, and relevant background facts.
Comparative treatment evidence is evidence as to whether the petitioner was treated the same as, or differently than, similarly situated persons of a different race, or sex, or religion, or national origin, or color, other protected basis. Such evidence is not always required, but a difference in the treatment of similarly situated persons that are members of a different group than the petitioner is probative of discrimination because it tends to show that the treatment was not based on a nondiscriminatory reason. Conversely, an employer's consistent treatment of similarly situated persons of different races, sexes, and such, tends to support its contention that no discrimination occurred. Comparator evidence that supports either party's position must be weighed in light of all the circumstances. For example, if the group of similarly situated persons who were treated better than the petitioner included persons of the petitioner's race, that would weaken his or her claim, but it would not be conclusive proof of nondiscrimination because the balance of the evidence overall might still more convincingly point to discrimination.4
Disparaging references about the petitioner's protected class made by decision makers or persons influential to the decision can also constitute direct evidence of motive. The credibility of the witnesses attesting to discriminatory statements, and the credibility of the witnesses denying them, is critical to determining whether such statements actually were made. If disparaging discriminatory statements were made, their importance will depend on their egregiousness and how closely they relate-in time and context-the decision in question.5
Specific employment decisions and issues should not be looked at in isolation. Other information that can shed light on whether the employer's adverse employment decision was motivated by a prohibited reason includes the employer's treatment of other employees (or customers, etc.), attitudes, the work environment generally, and the context of the challenged employment decision. For example, background evidence that an employer has permitted racial jokes and slurs about Asian Americans in the workplace would support an Asian American employee's allegation that her termination was based on her race. Similarly, background evidence that an employer has discriminated against African Americans in hiring, pay, or promotions would support an African American employee's claim that a pattern of mistreatment-e.g., her supervisor undermining her work, ostracizing her, and making snide comments-is actually a pattern of race-based harassment. The point is that background evidence can help determine the employer's state of mind and otherwise provide important context. Also, as suggested by the above examples, the inquiry into background evidence can reveal other potential violations. Id.
Therefore, the MSPB AJ was inaccurate in portraying "disparate treatment" and "pretext" as two separate theories of discrimination. Rather, it appears that the MSPB AJ in this case essentially applied a disparate treatment framework to analyze whether the Agency's decision to remove Petitioner was discriminatory. In doing so, she considered several types of potential evidence of disparate treatment. She considered comparative treatment evidence of other employees who also had performance problems, but were allowed to take additional training and were not removed. She also considered whether Petitioner's First Mentor, who became his first-level supervisor, made disparaging references about Petitioner's race or sex, and other relevant background facts about the work environment generally and the context of the removal decision.
The MSPB AJ found that the comparator employees identified by Petitioner were not similarly situated to him, for the reasons stated previously in the background section above. She also found that the First Mentor did not utter racist or sexist remarks because Petitioner had not complained about those remarks to his second-level supervisor. Finally, she noted that all of Petitioner's supervisors and mentors, not just the First Mentor, felt that Petitioner had trouble performing his major duties at work, and that it was his poor work performance that was the real reason for his removal, not any discriminatory reason or bias harbored by Agency management officials.
Upon review, we determine that the MSPB did not err in finding no discrimination on the bases alleged. Petitioner essentially maintains that the MSPB AJ overlooked the affidavit testimony of two males, a fellow claims representative and Petitioner's Third Mentor, who testified that they had personally heard the First Mentor utter disparaging remarks about males.
For example, the male Claims Representative averred:
[Petitioner's second-level supervisor] left early one day and [the First Mentor] said something like 'it used to be the good ole boy system and it wasn't right and she was going to change it.' It was just she and I in the mailroom that day when she said that to me. She said [the second-level supervisor] and [another male supervisor] were scratching each other's back and it wasn't right and she was going to change this. I didn't say anything. I just acted like she was talking to herself.
Tab 12, at 17.
Petitioner's Third Mentor testified in his affidavit: "I have heard [the First Mentor] say 'This is not the Boy's Club here anymore, It's the Girl's Club.' I never heard her say the specific comment of "Girls rule the world" but it sounds like something she would say." Tab 11, at 35.
Even if a fact-finder were to credit all this evidence of bias in the First Mentor, including the closing-time incident on December 1, 2011, this evidence, standing alone, does not necessarily prove that a discriminatory motive was responsible for the removal. A link must be shown between the bias and the adverse action. For example, evidence that the alleged biased remarks were made by the individual responsible for the adverse employment decision or by one who was involved in the decision, along with evidence that the remarks were related to the decision making process, would be sufficient to establish this link.
Had the First Mentor been the decision maker in the removal action, Petitioner's evidence would be more compelling. But here, the Agency official who decided to remove Petitioner worked in a different field office from the First Mentor and had not been previously connected with Petitioner's treatment at his old office. The deciding removal official made her own independent determination of Petitioner's work performance, and found it to be lacking. Her assessment was consistent with the assessment of others who had worked with Petitioner, including his Second and Third Mentors. The Second Mentor reported that Petitioner had difficulty learning new concepts, and she grew frustrated repeating the same information over and over. Petitioner's Third Mentor opined that Petitioner had difficulty early on as a Claims Representative and was prematurely promoted to a GS-11 journey man work level, a work responsibility for which he was not yet ready for and could not perform well.
For all these reasons, we find that MSPB did not err in finding that Petitioner did not sufficiently show that the Agency's proferred, legitimate, nondiscriminatory reason for removing Petitioner (poor work performance) was a pretext to hide a discriminatory motive.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the result of the final decision of the MSPB, finding no 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 (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
__4/9/15________________
Date
1 Based on the Report of Investigation, it appears that the Agency consolidated Agency Nos. ATL-11-0769-SSA and ATL-11-0089-SSA. Tab 9, at 19.
2 In the Report of the Investigation for Agency No. ATL-11-0769-SSA, the Agency's investigator defined the hostile work environment claims as follows:
1. Whether the Agency subjected Petitioner to non-sexual harassment based on sex (male), race (Black), and physical disability (hypertension), when on June 24, 2011 through the present, the Agency had not provided Petitioner the proper training as it relates to his job functions. When he asked the first-level supervisor for help with issues, she ridiculed Petitioner, talked down to him, and treated him differently from other employees instead of providing him with the training he deserved. As a result, the first-level supervisor's actions aggravated his disability on a daily basis.
a. On June 24, 2011, and July 19, 2011, Petitioner received work performance write-ups that were unfounded and contained negative comments. During write-up interviews, the first-level supervisor told him his work performance was substandard and made several derogatory comments about him dating White women and how women control the Agency.
b. On June 24, 2011 and July 19, 2011, the first-level supervisor treated him differently by requiring him to stop scheduled face-to-face interviews with claimants and to the front lobby to help walk-in claimants while the schedule appointments wait at his desk.
c. On June 29, 2011, the first-level supervisor commented to him: "Men may rule the world but women control the Social Security Administration."
d. On or about July 1, 2011, the first-level supervisor went through his desk while he was out of the office.
e. On July 13, 2011, the first-level supervisor made comments to him about dating women outside of his race.
2. Whether the Agency subjected Petitioner to discrimination and hostile work environment on the bases of race (Black) and retaliation for prior EEO activity when:
a. On September 2, 2011, the Agency placed him on a Performance Assistance Plan;
b. On September 2, 2011, the Agency denied his reasonable accommodation request for transfer;
c. On August 18, 2011, the Agency did not give him a performance award.
Tab 9, at 19-20.
3 We note that the Agency's submissions also contained affidavits from the EEO investigation for Agency No. ATL-11-0769-SSA.
4 See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) ("Congress never intended to give an employer license to discriminate against some [persons of a certain race] merely because he favorably treats other members of the employees' group."); cf. Sinai v. New England Telephone & Telegraph Co, 3 F.3d 471, 474 (1st Cir. 1993) (in a Section 1981 case: "The relevant issue in a discrimination claim is whether the defendant discriminates against the plaintiff on an improper basis. The fact that the defendant hired other members of the protected class is evidence that the jury can consider in reaching the ultimate issue, but is not dispositive in itself. The jury must weigh all of the evidence.").
5 EEOC Compliance Manual, Section 15: Race & Color Discrimination, EEOC No. 915.003 (Apr. 19, 2006)
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
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Washington, DC 20013
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