0320150016
04-15-2015
Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Petition No. 0320150016
MSPB No. DA-0432-13-0598-I-1
DECISION
On December 4, 2014, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events at issue, Petitioner worked as an Information Technology Specialist (Systems Analysis), GS-2210-15, at the Agency's Office of Information Technology, Enterprise Infrastructure Division, Converged Services Implementation Branch, in Dallas, Texas. Petitioner's First Level Supervisor was the Branch Chief (S1).
On April 23, 2012, S1 gave Petitioner his performance plan and appraisal form (PPA) for the October 1, 2011 to September 30, 2012 time period. According to the PPA, Petitioner's performance goals (PG) included PG #1 (lead Enterprise Blackberry operations to maintain systems functioning and infrastructure) and PG #5 (support the USCIS Citrix operations and information systems security duty).
On September 17, 2012, S1 issued Petitioner a notice of unacceptable performance in PG #1 and PG #5, and placed Petitioner on a 60-day performance improvement plan (PIP). On December 10, 2012, S1 issued Petitioner a notice of extension of the PIP through January 11, 2013 because Petitioner needed to use leave during the PIP period. On February 8, 2013, S1 issued Petitioner a PIP results and close-out memorandum. The memorandum described the deficiencies in Petitioner's performance, informed him that his performance had not improved to an acceptable level, and stated that the PIP results would be referred to upper management for consideration of appropriate administrative action.
On March 7, 2013, the Deputy Chief Information Officer issued Petitioner a notice of proposed removal for unacceptable performance. The notice cited Petitioner's unacceptable performance in PG #1 and PG #5 during the September 17, 2012 to January 11, 2013 PIP period. Specifically, the notice stated that Petitioner repeatedly failed to submit complete, viable reports, that the assignments Petitioner did submit rarely contained any substantive analysis, and that on several occasions the reports Petitioner submitted were incomplete or contained inaccurate information. On June 28, 2013, the Chief Information Officer issued a decision to remove Petitioner, effective immediately.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of disability (service-connected physical disability) and reprisal for prior protected EEO activity (EEO complaints filed in March 2010, November 2011, and July 2012) when he was removed from his position.
On December 20, 2013, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining the unacceptable performance charge, finding no discrimination, and affirming Petitioner's removal. The MSPB AJ also determined that Petitioner failed to prove his affirmative defense of harmful procedural error.
In sustaining the unacceptable performance charge, the MSPB AJ found that the Agency presented credible and probative evidence showing Petitioner's unacceptable performance during the PIP period. In so finding, the MSBP AJ cited S1's February 8, 2013 memorandum listing the items that Petitioner failed to complete or perform. In addition, the MSPB AJ credited S1's testimony that Petitioner failed to produce any legitimate work product. Further, the MSPB AJ credited S1's testimony that he had tried everything possible to help Petitioner.1 The MSPB stated the following with respect to S1's testimony: "[S1] became visibly emotional during his testimony while describing the disappointment he experienced in his attempts to help [Petitioner] improve his performance. He conveyed a compelling sense that he had been, and was still, quite distraught over [Petitioner]'s failure, even unwillingness, to take the steps necessary to improve."
In finding no denial of reasonable accommodation,2 the MSPB AJ determined that Petitioner failed to identify any request for reasonable accommodation. Moreover, the MSPB AJ determined that Petitioner failed to show that S1, or anyone with any responsibility, was aware of a disability that might have prevented him from performing his duties.
In finding no disparate treatment on the bases of disability and reprisal, the MSPB AJ initially determined that the Agency articulated a legitimate, nondiscriminatory reason for Petitioner's removal; namely, Petitioner's unacceptable performance during the PIP period. Next, the MSPB AJ found that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Specifically, the MSPB AJ found that Petitioner did not show that the Agency treated him differently from similarly situated employees or that the Agency's reason for his removal was not believable. Regarding reprisal discrimination in particular, the MSPB AJ found that Petitioner did not show a causal connection between his EEO activity and his removal. Although S1 was aware of Petitioner's EEO activity, the MSPB AJ found that, if anything, S1 exercised greater caution to ensure that there was no contribution by the EEO activity to his assessment of Petitioner's performance. In so finding, the MSPB AJ credited the following testimony by S1: he coordinated with Labor and Employee Relations (LER); LER had told him it would be a challenging time to work with an employee who had filed a complaint, particularly when he was implementing a PIP; he tried to keep the EEO activity separate from his supervisory tasks; and he relied on guidance from LER for all his actions to make sure he was doing things the right way, i.e., not based on any improper motive.
Petitioner then filed a petition for review with the full Board, but the Board denied his petition. Petitioner then filed the instant petition. In his petition, Petitioner essentially argued that proved his affirmative defense of harmful procedural error because he was a bargaining unit employee and the Agency's actions with respect to the PPA, PIP, and removal violated the collective bargaining agreement. Among other things, Petitioner disputed the MSPB AJ's favorable determination of S1's credibility based on his emotional demeanor. Instead, Petitioner opined that S1's "partially effusive, partially glib" testimony indicated that S1's motivation was not as admirable as the MSPB AJ perceived. Moreover, Petitioner cited three "rather telling" emails from S1 in January and February 2012 that mentioned his EEO activity.
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 petition must contain a statement of the reasons why the decision of the MSPB is alleged to be incorrect, in whole or in part, only with regard to issues of discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information. 29 C.F.R. � 1614.304(b)(3). 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).
As an initial matter, we note the Commission has no jurisdiction to review the MSPB's determination on Petitioner's affirmative defense of harmful procedural error. The Commission's jurisdiction is limited to reviewing the MSPB's determinations on allegations of discrimination. See 29 C.F.R. � 1614.303 et seq. Accordingly, our decision will only address Petitioner's allegations of disability and reprisal discrimination.
Upon review of the record, we agree with the MSPB's finding of no disability or reprisal discrimination. Regarding his denial of accommodation claim, we agree with the MSPB AJ that Petitioner failed to identify any request for reasonable accommodation. Regarding his disparate treatment claims, we agree with the MSPB that Petitioner failed to establish that the Agency's articulated reason for his removal - his unacceptable performance in PG #1 and PG #5 during the PIP period - was a pretext for disability or reprisal discrimination.
Although Petitioner argued that the MSPB AJ erred in crediting S1's testimony about his performance, we note that the MSPB AJ's credibility determination was based on S1's demeanor. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.B (Nov. 9, 1999). We find that Petitioner's differing opinion about S1's demeanor is insufficient for us to overturn the MSPB AJ's credibility determination.
Moreover, we find that the January and February 2012 emails are not proof that Petitioner's removal was based on a retaliatory motive. Petitioner cited the following emails from S1 to other management officials:3
(a) A January 26, 2012 email with the subject, "Final Review of PPA." S1 stated, in pertinent part, "It is very realistic that this PPA issuance will result in additional grievances in the very near future or additional allegations to [Petitioner]'s EEO case. Finally, LER is checking with Counsel to see if we have officially reviewed the EEO complaints the [A]gency accepted so we can start responding to them."
(b) A February 6, 2012 email with the subject, "FW:9A for PPA." S1 stated, in pertinent part, "It is expected by LER that the union will request to bargain. Over the next thirty days I may have to fly down to Dallas to work with LER and the union on the bargaining items in question. At the same time I am also preparing to work on the 35 questions in the latest EEO complaint. I have been advised by [Agency] Counsel to save all e-mails to and from [Petitioner] and in the next 60-90 days they will most likely be conducting face to face interviews with me and some of my staff members here in Vermont. I assume the same is true for interviewing anyone who received the EEO complaint."
(c) A February 24, 2012 email with the subject, "FW:DEMAND TO BARGAIN AND INFORMATION REQUEST." S1 stated, in pertinent part, "Just keeping you in the loop we received the union demand to bargain today. I will be working with [the LER Specialist] on Monday. I am also trying to finish up the answers to the new EEO questions. Looks like weekend homework ..."
We find that S1's emails do not demonstrate a bias against Petitioner based on his EEO activity, but only show that S1 was aware of the EEO activity when he and other management officials were finalizing Petitioner's PPA. Petitioner has the overall burden of proving discrimination and we agree with the MSPB that he has not done so here.
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 disability or reprisal 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
___4/15/15_______________
Date
1 The MSPB AJ found that, throughout the PIP period, Petitioner met with S1 and a mentor and had frequent, regular phone conferences and email exchanges with them to discuss his performance and receive guidance.
2 We note that the MSPB AJ's September 19, 2013 summary of the telephonic prehearing conference stated that Petitioner was not claiming a failure to accommodate.
3 The other management officials included Petitioner's Second Level Supervisor, the Chief of the Workforce Management Branch, and the Chief of Staff.
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0320150016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320150016