[Redacted], Coleen M, 1 Petitioner,v.Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Sep 16, 2020

MSPB No. DC-0752-20-0052-I-1 (E.E.O.C. Sep. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coleen M,1 Petitioner, v. Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Petition No. MSPB No. DC-0752-20-0052-I-1 DECISION On April 13, 2020, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not establish that the Agency discriminated against her. BACKGROUND At the time of events giving rise to this petition, Petitioner worked as a Guidance Counselor, TP- 1701-EE-14, at Stuttgart High School, located in the Europe East District of the Agency’s European Region based in Germany. Petitioner alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), disability (mental), and reprisal for prior 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2 The record indicates that the initial decision would become final on May 6, 2020, unless Petitioner filed a petition for review with the Board. We note that MSPB indicated to the Commission that Petitioner did not file a petition for review with the Board. As such, while this petition was initially premature, it is now ripe for our review. 2020003100 2 protected EEO activity when on October 18, 2019, she was notified that she would be removed from federal service, effective November 18, 2019, due to unprofessional conduct.3 As part of her affirmative defenses, Petitioner also alleged that the Agency denied her reasonable accommodation for her disability. A hearing was held on January 30-31, 2020, and thereafter an MSPB Administrative Judge (AJ) issued an initial decision sustaining the Agency’s unprofessional conduct charge4 against Petitioner for 1) telling a female student that she needed to lose belly fat/weight (student 1); 2) subsequently placing her hand on student 1’s stomach in front of student 1’s mother to emphasize that student 1 needed to lose belly fat/weight; 3) threatening to “snatch/smack” a special education student (student 2); and 4) directing a student (student 3) to go off-campus during the school day to purchase coffee for Petitioner’s personal consumption. In sustaining the charge, the MSPB AJ considered Petitioner’s contention that the Agency’s action was in “retaliation for her prior [EEO] activity and was rooted in race and disability discrimination”. However, the MSPB AJ concluded that the Agency’s charge and removal action were supported because the evidence clearly showed that Petitioner engaged in the alleged misconduct. With regard to Petitioner’s affirmative defenses, wherein she alleged discrimination, the MSPB AJ found that Petitioner failed to prove that the Agency’s actions were due to discrimination on the alleged bases. In reaching this conclusion, the MSPB AJ determined that Petitioner could not show that she was treated less favorably than similarly-situated employees and did not present any other evidence of pretext. As for the denial of Petitioner’s reasonable accommodation request, the MSPB AJ found that “the only requested reasonable accommodation for which the [Petitioner] submitted evidence was her request for a new supervisor.” The MSPB AJ found that the Agency acted in accordance with EEOC guidance when the Agency informed Petitioner that it was not obligated to reassign her to a new supervisor as a reasonable accommodation. Citing to MSPB case law, the MSPB AJ also emphasized that even accepting Petitioner’s allegation that the Agency had denied her reasonable accommodation, Petitioner nevertheless failed to establish her claim of disability discrimination because “[a] disability cannot excuse misconduct even if the disability is the cause of the misconduct.” For these reasons, the AJ concluded that the preponderant evidence failed to show that the Agency acted with discriminatory motive. 3 Although Petitioner initiated informal EEO counseling following her receipt of the Notice of Proposed Removal, she did not file a formal EEO complaint. See Certification Regarding Discrimination Complaint, dated November 8, 2019, contained in Part I of the Initial Appeal File at 86. 4 We have summarized the four specifications that the Agency cited in support of its charge of unprofessional conduct. 2020003100 3 ARGUMENTS IN PETITION At the time of filing, Petitioner did not submit a brief in support of her petition. The Agency submitted a brief expressing its opposition to the petition on the same grounds noted in the MPSB AJ’s decision. Petitioner subsequently submitted a response on June 26, 2020, wherein she expressed her disagreement with the “Agency’s characterization of the nature and circumstances surrounding [her] removal and the nature and atmosphere surrounding [her] place of employment.” While we acknowledge Petitioner’s submission, we note that under our regulations, a petitioner is required to file any brief in support of a petition concurrently with the petition. See 29 C.F.R. § 1614.304(b). Because Petitioner failed to do so, we will not consider her response to the Agency’s brief. 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). To prevail on a claim of disparate treatment discrimination, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In this regard, Petitioner must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Corp. 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 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. 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, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanation is unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. We assume, for purposes of analysis only and without so finding, that Petitioner has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated a legitimate, nondiscriminatory reason for removing her from federal service. As noted in the Agency’s Notice of Proposed Removal and Decision on Proposed Removal, the Agency charged Petitioner with unprofessional conduct for: 1) telling a female student that she needed to lose belly fat/weight (student 1); 2) subsequently placing her hand on student 1’s stomach in front of student 2020003100 4 1’s mother to emphasize that student 1 needed to lose belly fat/weight; 3) threatening to “snatch/smack” a special education student (student 2); and 4) directing another student (student 3) to go off-campus during the school day to purchase coffee for Petitioner’s personal consumption. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Petitioner now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In her response to the Agency’s Notice of Proposed Removal, Petitioner contended that “it [was] clear that her actions were not intentional or malicious and that she was not seeking out to intentionally injure the child” and that several parents “actively supported her and in fact did not support the position of the administration.” Petitioner also argued that the proposal was based on racial animus because she took “various minority students under her wing and provided them with additional support and assistance.” Lastly, she contended that the proposal constituted reprisal for attempting to protect her civil rights. In this regard, Petitioner stated that “she noticed that as an African American she was treated differently than other Counselors and was required to complete additional steps that the other Counselors were not required to do.” Petitioner further stated that “[she] followed the additional rules/steps that were required of her but when she questioned the validity of those rules she was subjected to a disciplinary proceeding.” During the MSPB hearing, Petitioner reiterated her prior contention that she did not intended to hurt anyone, and she maintained that her actions reflected the close relationship she had with her students. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Upon review, we discern no basis to disturb the MSPB AJ’s decision, as we find that the MSPB AJ careful considered Petitioner’s arguments and found them to be unpersuasive. In so finding, the MSPB AJ thoroughly explained the reasons for her legal and factual conclusions. Our own independent review of the record, to include Petitioner’s response to the Notice of Proposed Removal, MSPB hearing records, and hearing audio, shows that Petitioner largely did not deny the Agency’s allegations against her, but rather she attempted to rationalize them. The record also contains numerous emails/statements from witnesses who expressed their concerns to management regarding Petitioner’s conduct. See Part I of Initial Appeal File at 172-173, 176, 178-192. 2020003100 5 While we are mindful of Petitioner’s contention that she did not intend to hurt any student and that management knew about her mental disabilities, we cannot say that the Agency’s removal action was discriminatory, as employers remain free to discipline or terminate employees for poor performance or improper behavior, even if the employee has engaged in EEO activity. See EEOC’s Questions and Answers: Enforcement Guidance on Retaliation and Retaliation Issues at q. 7. Moreover, while Petitioner has alleged that she was treated in a disparate manner than other employees, we find no evidence to support that contention. Petitioner also has not explained what additional rules/steps that she was required to follow. For these reasons, we conclude that the Agency did not subject Petitioner to disparate treatment as alleged. We turn now to Petitioner’s affirmative defense that management discriminatorily denied her request for a new supervisor as a reasonable accommodation for her mental disabilities in violation of the Rehabilitation Act. Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. We assume for the purposes of our analysis that Petitioner was a qualified individual with a disability. We still find no violation of the Rehabilitation Act because the Commission has long held that a request for reassignment to a new supervisor does not constitute an actionable request for reasonable accommodation, as such a request is on its face unreasonable. See Donna S. v. Dep’t of Def., EEOC Appeal No. 0120160652 (May 16, 2018) (citing Perrine v. Dep’t of the Air Force, EEOC Appeal No. 01A52743 (Aug. 9, 2006) see also EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002, Q. 33 (rev. Oct. 17, 2002) (“An employer does not have to provide an employee with a new supervisor as a reasonable accommodation”). Consequently, we find no violation of the Rehabilitation Act with regard to the Agency’s actions. 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. 2020003100 6 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 16, 2020 Date