[Redacted], Katherina A., 1 Petitioner,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

May 23, 2022

Petition No. 2022000814 (E.E.O.C. May. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katherina A.,1 Petitioner, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Petition No. 2022000814 MSPB No. DC-0432-21-0263-I-1 DECISION On October 4, 2021, Petitioner filed a timely 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. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Industrial Economist, GS-0110-12, at the Agency’s Office of Energy Consumption and Efficiency Analysis, Energy Information Administration in Washington, D.C. On August 13, 2020, Petitioner’s first-line supervisor, a Supervisory Operations Research Analyst, issued Petitioner a Notice of Proposed Removal for Unacceptable Performance (Notice). Initial Appeal File at 8-12. The Notice stated that Complainant failed to demonstrate the ability to satisfactorily execute the essential duties and responsibilities of her position during a 30-calendar day Performance Demonstration Period. Id. In support, the Notice explained that Petitioner received a Performance Counseling Letter in January 2020, which notified Petitioner that her performance was not at the “Meets Expectations” level in three of four critical elements on her performance plan. Id. 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. 2022000814 2 The Notice stressed that Petitioner was informed of deficiencies in her performance at various times in the rating period, including, among other things, failure to attend regularly scheduled meetings, failure to follow instructions and guidance, and failure to complete any of four assigned tasks during the Performance Demonstration Period. On January 29, 2021, the Director of the Energy Information Administration sustained the proposed removal. Initial Appeal File at 14-17. Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when she was removed from the Agency.2 An MSPB Administrative Judge (AJ) issued an initial decision on the written record after Petitioner withdrew her request for a hearing, finding that the Agency had not engaged in discrimination as alleged by Petitioner and affirming Petitioner’s removal. The MSPB AJ determined that the Agency established valid performance standards and critical elements, which were communicated to Petitioner. The MSPB AJ noted that the Agency established that Petitioner failed to meet expectations before and after her placement on the Performance Demonstration Period plan. The MSPB AJ concluded that there was no nexus between Petitioner’s prior EEO complaints and her removal. The MSPB AJ disagreed with Petitioner’s assertion that her supervisor created a hostile work environment and concluded that the supervisor’s actions were attempts to provide guidance and support. According to the MSPB AJ, Petitioner’s complaints of a hostile work environment referenced “micromanagement, unfair assignments, and unrealistic deadlines among other claims.” Moreover, the AJ determined, Petitioner failed to show that the Director, as the deciding official, had knowledge of Petitioner’s prior EEO activity. Further, the MSPB AJ found no evidence that Petitioner’s participation in a coworker’s EEO complaint, approximately four years before Petitioner’s removal, was related to the removal. Regarding Petitioner’s assertion that her “removal from service is the product of unlawful discrimination on the basis of race (Asian), religion (Islam), and national origin (Middle East),” the MSPB AJ noted that the only reference to additional bases of discrimination was in the statement of issues. The MSPB AJ concluded that Petitioner’s bare allegation and conclusory statement regarding the additional bases were insufficient to meet Petitioner’s burden of proof to establish discrimination as alleged. Petitioner then filed the instant petition.3 2 The record indicates that Petitioner asserted that the termination was due to race, color, national origin, and/or religion. However, the MSPB AJ’s decision and Petitioner’s appeal focus on reprisal. 3 Petitioner’s attorney submitted a request for an extension of time to file a statement or brief in support of the petition. However, the request was denied pursuant to 29 C.F.R. § 1614.304(b)(3), which requires concurrent submission of the petition for review and supporting statement. As such, the statement was not considered on appeal. 2022000814 3 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 finding no discrimination, the MSPB AJ relied upon the MSPB's decision in Savage v. Dep't of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, inter alia, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. §2000e-16 is a matter of civil service law. Id. We find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's removal claim. However, we have analyzed this case according to the McDonnell Douglas paradigm and find that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her in reprisal for protected activity. To prevail in a disparate treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Upon review of the record, the Commission finds that even assuming, arguendo, that Petitioner established a prima face case of discrimination based on reprisal for protected EEO activity or any additional basis, the Agency provided legitimate, nondiscriminatory reasons for Petitioner’s removal. 2022000814 4 Specifically, the record is consistent with the Agency’s explanation, and the MSBP AJ’s finding, that management officials clearly detailed and described Petitioner’s performance deficiencies throughout the relevant period. The record supports the Agency’s explanation that Petitioner failed to improve despite ongoing communication regarding performance deficiencies. Petitioner has not established that the Agency’s reasons are pretextual or unworthy of credence. Moreover, the Commission has long held that an agency has 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. See Burdine, 450 U.S. at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan 16, 1997). Accordingly, the Commission agrees with the MSPB’s ultimate finding that Petitioner did not establish that her removal was based on reprisal for prior protected activity. 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 (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. 2022000814 5 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’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 May 23, 2022 Date