0320140082
02-04-2016
Alisa M.,1 Petitioner, v. Thomas E. Perez, Secretary, Department of Labor, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alisa M.,1
Petitioner,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Petition No. 0320140082
MSPB No. CH-0752-11-0710-B-1
DECISION
On September 10, 2014, 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 claims 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
Petitioner worked as an Equal Employment Opportunity Specialist with the Office of Federal Contract Compliance Program in Chicago, Illinois. Petitioner alleged the Agency discriminated against her in reprisal for prior EEO activity when it suspended her from duty, and pay, for 25 days, effective July 20, 2011, based on a charge of unprofessional conduct for sending out inappropriate emails.
The charge was based on five specifications of unprofessional conduct as set forth in the MSPB's Initial Decision dated November 17, 2011. In the decision, the MSPB Administrative Judge (AJ) found that the Agency proved that it would have suspended Petitioner absent her whistle-blowing activity, and determined that Petitioner did not prove her affirmative defenses of discriminatory reprisal. Petitioner filed a review of the initial decision seeking reconsideration.
On April 19, 2013, the MSPB Board (Board) issued an Order affirming the AJ's initial decision's determination that Petitioner failed to establish that the Agency retaliated against her for prior EEO activity, but remanded Petitioner's whistle-blower claim to the AJ for further adjudication. The AJ issued a second decision finding that the Agency met its burden of proof that it would have suspended Petitioner even in the absence of whistle-blowing activity, and affirmed the 25-day suspension. Petitioner filed a petition for review of the AJ's findings in the second decision. On August 18, 2014, the Board issued an Order denying the petition, upholding the Agency's 25-day suspension.2 Petitioner filed the instant petition.
Petitioner is requesting that the Commission review her discrimination claim because the AJ erred when she determined that Petitioner failed to prove her affirmative defense of reprisal for prior EEO activity.
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).
The Commission finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on reprisal for prior EEO activity, we agree with the MSPB that the Agency provided a legitimate, non-discriminatory reason for the 25-day suspension. Petitioner presented no persuasive evidence of discriminatory animus surrounding the suspension. The record evidence clearly establishes, and Petitioner does not dispute, that she sent the emails which formed the basis of the five specifications asserted by the Agency to support its charge of unprofessional conduct. Additionally, she does not dispute that the words contained in the emails were her own. She consistently testified that she sent the emails because she was upset that she had been involved in lengthy ongoing litigation with the Agency.3 Like the MSPB, the Commission finds, however, that Petitioner failed to establish that the decision to suspend her was based on her participation in prior EEO 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. 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
_2/4/16_________________
Date
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 Board declined to revisit the AJ's determination that Petitioner did not establish discrimination based on reprisal for engaging in prior EEO activity.
3 In one email, Petitioner told a female employee, "Did I mention the black skirt with the matching black jacket you wore to the MSPB hearing was too short for a woman of your age and position? You are not very bright and have poor judgment as shown by the black skirt."
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