0320150041
04-30-2015
Petitioner, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320150041
MSPB No. AT-0752-14-0602-I-1
DECISION
On March 6, 2015, 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.
BACKGROUND
Petitioner worked as a Teleservice Representative, GS-08, at the Agency's Mega-Teleservice Center in Birmingham, Alabama. Petitioner alleged that the Agency subjected her to retaliation on the basis of reprisal for prior protected EEO activity and harassment when she was suspended for 20-days based upon three specifications of failing to observe the requirements of courtesy and consideration in performing her Teleservice Representative duties.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision which sustained the 20-day suspension. The AJ found the evidence showed that Petitioner was rude and discourteous to callers on May 8, and 17, and June 13, 2012. Complainant maintained that callers were requesting confidential information about other customer's accounts and even though the callers represented themselves as having the customer's permission she could not release the customer's confidential information. The AJ also found that Petitioner failed to establish that the Agency retaliated against her for engaging in EEO activity. The Agency stipulated that Petitioner had previously filed EEO complaints, and also that the proposing and deciding officials were aware of the Petitioner's EEO complaints at the time that they proposed and decided to suspend her. The AJ found however, that Petitioner failed to introduce any evidence which showed that the 20-day suspension was issued in retaliation for her EEO activity. Furthermore, the AJ noted that the Agency introduced strong and credible evidence, unrebutted by the Petitioner that she engaged in the conduct charged. The AJ further found that because the conduct in which Petitioner engaged was so egregious the Agency would have taken the same action even in the absence of any EEO activity by Petitioner. Given Petitioner's past record, the AJ was persuaded that the Agency exercised forbearance in not imposing a more serious sanction. For these reasons, the AJ determined that Petitioner's retaliation claim failed.
Thereafter, Petitioner sought review by the full Board. The Board found that there was no basis for granting the petition for review. The Board also found that because Petitioner did not challenge the AJ's finding that she failed to establish that she was subjected to retaliation, there was no reason to disturb the finding. Petitioner then filed the instant petition. Petitioner argues primarily that she is being punished based on hearsay. She maintains that she was following the rules regarding sensitive information, and that these rules do not allow a third party to intervene on behalf of elderly clients. She also maintains that the AJ would not allow her Union Representative to present information to establish a nexus between her EEO activity and the matters at issue.
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).
In the instant case, we find that Petitioner failed to demonstrate that she was subjected to retaliation when she was suspended. We find that even if we assume arguendo that Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was suspended due to the manner in which she treated Agency customers. Further, with regard to Petitioner's allegations on review, we find that Petitioner has not provided any evidence which suggests that discriminatory animus was involved with regard to her suspension. Petitioner continues to argue that the information requested by customers was privileged and therefore she was unable to provide the information. The record is clear; however, that Petitioner was suspended based on the manner in which she responded to the requests, not her contention that the requested information could not be released.1
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
___4/30/15_______________
Date
1 Further, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Petitioner's claim she was also subjected to a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Petitioner failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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0320150041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320150041