0320140001
02-05-2015
Petitioner, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Petitioner,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320140001
MSPB No. DC0351110450B2
DECISION
On September 17, 2013, 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
At the time of events giving rise to this complaint, Petitioner worked as a Pay Pool Advisor, YA-0301-02, in the Civilian Lead Unit, Acquisition Management and Integration Center (AMIC), Headquarters Air Combat Command, at Langley Air Force Base in Hampton, Virginia. Petitioner alleged that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity when on June 6, 2010; she was changed to a lower grade and to a less favorable position due to a reduction-in-force (RIF).
Petitioner filed a mixed case complaint and the Agency issued a decision finding that Petitioner was not discriminated against as alleged. Initially, the MSPB Administrative Judge (AJ) held a hearing and issued a decision that affirmed the Agency's actions because Petitioner did not prove her case. Petitioner appealed and the Board subsequently remanded the appeal for further adjudication finding that Petitioner should have been allowed to call additional witnesses. During a pre-hearing conference, Petitioner stated that she did not wish to call additional witnesses and that the bases of discrimination were only race and reprisal, dropping the allegations of sex and age discrimination. The AJ cancelled the supplemental hearing and issued a decision. The AJ issued a decision affirming the Agency's action. Petitioner requests that the Commission review the AJ's decision.
The AJ found the following: Petitioner was hired on November 8, 2008 to serve as National Security Personnel System (NSPS) Pay Pool Advisor. Following the repeal by Congress of the statutory authority for NSPS in 2009, the AMIC was required to convert its civilian employees out of NSPS and back to the GS pay system. The Director and Deputy Director decided Petitioner's position was no longer warranted. They requested that Petitioner's position be abolished and replaced with an Information Technology (IT) position, which they testified was a more pressing need than a personnel specialist position. The Agency's personnel office was responsible for processing the request and conducting the RIF abolishing Petitioner's position. The Agency tried to locate a vacant position for Petitioner to be reassigned in lieu of being separated by RIF. Although the Agency did not find one, Petitioner had an "assignment right" to the position of Budget Analyst, which she accepted on March 25, 2000.
On appeal to the MSPB, Petitioner alleged that she was discriminated against and that her position was not abolished and was being performed by another employee. The AJ found that Petitioner submitted numerous documents but failed to testify during the hearing and therefore failed to establish the relevancy of those documents to her case. Further, because Petitioner failed to testify at the hearing, she did not explain the reasons for her claims of retaliation or discrimination. The AJ noted that among Petitioner's unsworn closing statement, she asserted that a white female was not demoted or separated by the RIF, even though Petitioner once worked with her as a Pay Pool Advisor and that the Director "has a problem with people of color." The AJ found, however, that Petitioner failed to offer any evidence to substantiate these assertions and adopted the original decision finding that Petitioner failed to prove she was discriminated against as alleged.
Petitioner filed a Petitioner for Review with the Commission. In her petition, she requests that the Commission investigate the AJ and the Agency's attorney for "unethical actions." Petitioner asserts that she proved she was discriminated against as alleged, that she had prior EEO activity, and that she demonstrated that comparators were treated more favorably than she. The Agency responded that Petitioner failed to demonstrate that the AJ erred and requested that the Commission adopt the AJ's determination.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints 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).
We find that the MSPB correctly interpreted the law in this case. Petitioner failed to put forth sufficient facts to show that the Agency's proffered reasons for its actions were a pretext for race discrimination and reprisal. Moreover, although Petitioner asserts that the AJ impeded her ability to bring her case and behaved in an unethical manner, we find that Petitioner failed to demonstrate that that was the case. Nothing in the record shows that the AJ's abused her discretion in this case.1 Further, Petitioner was given the opportunity to present additional evidence and witnesses at an additional hearing, and failed to do so. As such, we find that the AJ appropriately found that Petitioner failed to prove that she was discriminated against as alleged.
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
___2/5/15_______________
Date
1 AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109.
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0320140001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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