0320140069
04-10-2015
Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320140069
MSPB No. DC-0752-12-0845-I-1
DECISION
On August 7, 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 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.
At the time of events at issue, Petitioner worked as a Security Specialist, GG-0080-13, at the Agency's Criminal Investigation Command (CID) in Quantico, Virginia. Petitioner's First Level Supervisor was the Chief of Security Programs for CID (S1). Petitioner's Second Level Supervisor was the Inspector General for CID (S2).
On June 21, 2012, S1 issued Petitioner a notice of proposed removal based on the following charges: (1) causing a security breach; (2) failure to follow established procedures; (3) lack of candor; and (4) failure to follow instructions. S1 cited one specification to support charge 1, six specifications to support charge 2, four specifications to support charge 3, and three specifications to support charge 4. S1 noted that Petitioner's prior disciplinary history included a June 2011 letter of reprimand and a March 2012 suspension.
On August 28, 2012, S2 issued a decision to remove Petitioner, effective immediately. S2 sustained the charges, but withdrew several of the specifications - one of the six specifications in charge 2, two of the four specifications in charge 3, and one of the three specifications in charge 4.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of national origin (Hispanic) and reprisal for prior protected EEO activity (March 2012 EEO complaint which required S1's May 2012 preparation of documents related to the EEO complaint) when it removed her.
On March 29, 2013, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision sustaining charges 2-4, finding no discrimination, and affirming Petitioner's removal.
As an initial matter, the MSPB AJ noted that the decision would not address charge 1 (causing a security breach) because the Agency withdrew the charge on the morning of the hearing.
Regarding charge 2 (failure to follow established procedures), the MSPB AJ sustained three out of the five remaining specifications. First, as to the three sustained specifications, the MSPB AJ found that Petitioner failed to follow established procedures related to creating an owner/servicing relationship in the Joint Personnel Adjudication System (JPAS). In so finding, the MSPB AJ credited the testimony of S1, the Security Manager (SM), and another Security Specialist (SS), noting the "very clear, direct and straightforward manner" in which they testified. Second, as to the two non-sustained specifications, the MSPB AJ found that Petitioner should have known the established procedures given her background and extensive training. The MSPB AJ, however, found that it was unreasonable to hold Petitioner accountable because the conduct in those specifications occurred before S1's arrival in CID and Petitioner claimed that she was unaware of the established procedures prior to that time.
Regarding charge 3 (lack of candor), the MSPB AJ sustained both of the remaining specifications. First, the MSPB AJ found that Petitioner engaged in a lack of candor when, in a May 2011 email to S1, she claimed that S1 had added personnel security to her duties. In so finding, the MSPB AJ cited documentary evidence showing that personnel security was already part of Petitioner's assigned duties. Specifically, the MSPB AJ noted that Petitioner gave herself credit for personnel security duties in prior performance evaluation self-assessments. In addition, the MSPB AJ noted that Petitioner's position description listed personnel security as a required duty. Second, the MSPB AJ found that Petitioner engaged in a lack of candor when, in a March 2012 sworn statement, she claimed that she was assigned to take ownership of all CID agents in January 2012. In so finding, the MSPB AJ credited the testimony of S1 and SS that S1 had assigned Petitioner that task as early as June 2011.
Regarding charge 4 (failure to follow instructions), the MSPB AJ sustained both of the remaining specifications. Specifically, the MSPB AJ found that, between June 2011 and January 2012, Petitioner failed to follow S1's instructions about utilizing assistance to clean up the JPAS files. In so finding, the MSPB AJ credited the testimony of S1 and SS that S1 directed the CID team to clean up JPAS and to use the employees assigned to provide assistance to them while the JPAS files were updated. Although Petitioner testified that she never received clear instructions until January 2012, the MSPB AJ did not find her credible. Specifically, the MSPB AJ cited SS's credible testimony that S1 provided clear instructions - on how to complete the task and the tools required to do so - to him and Petitioner in a June 2011 meeting. Moreover, the MSPB AJ cited S1's 2011 email to Petitioner informing her to use the assistance that had been arranged.
Regarding the allegations of discrimination, the MSPB AJ found no disparate treatment on the bases of national origin or reprisal. First, the MSPB AJ found that the Agency articulated legitimate, nondiscriminatory reasons for Petitioner's removal, as described above. Second, the MSPB AJ found that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's reasons were pretextual. Specifically, the MSPB AJ found that there was no evidence that management fabricated its reasons for Petitioner's removal, treated Petitioner differently than similarly situated persons outside of her protected classes, treated Hispanic employees or employees with prior EEO activity in a negative manner, or made any incriminating statements. Although Petitioner cited the temporal nexus between S1's May 2012 preparation of documents related to her EEO complaint and S1's June 2012 issuance of the notice of proposed removal, the MSPB AJ found that Petitioner's bare allegation that her removal amounted to reprisal was insufficient evidence of discrimination.
Petitioner filed a petition for review by the full Board, but her petition was denied. The Board noted Petitioner's argument that the fact that the Agency brought charges and specifications that the MSBP AJ did not sustain - charge 1 and two of the specifications in charge 2 - was proof that the real reason for her removal was reprisal. The Board, however, found that Petitioner did not show that the Agency lacked a reasonable basis to sustain charge 1 and two of the specifications in charge 2. Regarding charge 1, the Board noted that the Agency withdrew the charge at the beginning of the hearing for reasons that were not documented in the record. Although Petitioner asserted that the MSPB AJ precluded her from introducing evidence that would have shown that the Agency's reason for bringing charge 1 was pretextual, the Board found that there was no indication in the record that Petitioner ever attempted to use charge 1 to establish pretext. The Board found that the MSPB AJ's statement at the hearing that she would "not be adjudicating anything with respect to [c]harge 1" did not mean that Petitioner was precluded from showing pretext. Regarding two of the specifications in charge 2, the Board found that the MSPB AJ believed that Petitioner committed the acts charged in the specifications, but decided not to hold Petitioner accountable for those acts because they occurred under a prior supervisor.
Petitioner then filed the instant petition. In her petition, Petitioner stated that she was eager to have a thorough review of her allegations of discrimination by the Commission.
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).
Upon review of the record, we agree with the MSPB's finding of no disparate treatment on the bases of national origin or reprisal. Assuming, arguendo, that Petitioner established a prima facie case on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for her removal; namely, her failure to follow established procedures, her lack of candor, and her failure to follow instructions. Moreover, we find that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's reasons were pretextual.
In so finding, we give deference to the MSPB AJ's credibility findings concerning the testimony of S1, SM, and SS about Petitioner's misconduct.1 In addition, we agree with the MSPB AJ that Petitioner did not show that the Agency treated her differently from employees - who were not Hispanic or who did not have prior protected EEO activity - who engaged in misconduct of comparable seriousness. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, � II.E.2 (May 20, 1998) (Compliance Manual - Retaliation); EEOC Compliance Manual Section 15, "Race and Color Discrimination," No. 915.003, � V.2 n.50 (Apr. 19, 2006). Further, we agree with the MSPB AJ that, although Petitioner may have raised an initial inference of retaliation based on the time period between her prior protected EEO activity and her removal, Petitioner did not ultimately show that the Agency's reasons for her removal were designed to hide retaliation. See Compliance Manual - Retaliation, � II.E.2. Finally, we agree with the Board that the MSPB AJ's decision not to sustain charge 1 and two of the specifications in charge 2 was not proof that Petitioner's removal was retaliatory.
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 national origin 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
___4/10/15_______________
Date
1 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).
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0320140069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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