0320170010
03-07-2017
Angeles C,1 Petitioner, v. Robert M. Lightfoot, Jr., Acting Administrator, National Aeronautics and Space Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Angeles C,1
Petitioner,
v.
Robert M. Lightfoot, Jr.,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.
Petition No. 0320170010
MSPB No. DA0432134323I2
DECISION
On March 8, 2016, 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 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. For the reasons that follow, we CONCUR with the MSPB's final order implementing the initial decision's finding that Petitioner did not establish he was discriminated against as alleged.
BACKGROUND
Petitioner worked as a GS-12 Program Analyst in the Office of the Director at the Agency's Lyndon Johnson Space Center facility in Houston, Texas. Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, effective August 7, 2013, the Agency removed her for unacceptable performance in two of the critical elements of her position.
On March 4, 2013, the Agency issued Petitioner a Notice of Unacceptable Performance, advising her that she was failing to meet the performance requirements for two critical elements of her position: provide a risk-based cost estimate and related documentation for the Ares 1-X Project using the SEER suite of estimating tools (critical element 1), and using the PRICE Systems suite of estimating tools (critical element 2). The Notice indicated that Petitioner had not met expectations since 2011. She was subsequently placed on a 60-day Performance Improvement Plan (PIP) to provide her with the opportunity to improve her performance to a minimally acceptable level. Under the PIP, for each of the two elements she was given three specific work tasks and deadlines. She was also advised that to meet the minimally acceptable level, she could have no more than five errors and two missed deadlines.
At the conclusion of the PIP, the Agency determined that Petitioner had made 17 errors related to critical element 1, and 19 errors related to critical element 2. On June 6, 2013, Petitioner was issued a Performance Summary Rating Level of unacceptable for the applicable period, and a Notice of Proposed Removal. Following Petitioner's oral and written replies to the Notice, on August 5, 2013, the Agency issued a decision letter concluding that Petitioner failed to demonstrate acceptable performance in either critical element, warranting her removal effective August 7, 2013.
Petitioner appealed the removal action, arguing that the Agency failed to communicate her critical element and performance standards, did not warn her of inadequacies, did not provide her with reasonable opportunity to improve, and retaliated against her in the removal action. Petitioner initially requested a hearing, but subsequently withdrew her request.
Thereafter, an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's action, finding the removal action was proper because the Agency had in fact provided Petitioner with an explanation of the minimum level of performance necessary to achieve acceptable performance, and a reasonable opportunity to improve her performance. Additionally, the AJ found that Petitioner failed to show that the Agency's action was taken in retaliation for her prior EEO activity.
In finding no discrimination, the AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, 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.
Petitioner subsequently sought review by the full Board, which issued a final order affirming the initial decision. Petitioner filed the instant petition. In her petition, Petitioner contends the MSPB's erred in finding that she failed to establish that she was place on a PIP in retaliation for prior EEO activity. Petitioner argues that she was placed on a PIP in close proximity to the time she filed an EEO complaint.
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
In Petitioner's case, we find that the AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claims of discrimination based on reprisal for engaging in prior EEO activity when the Agency determined that she was unable to establish pretext with respect to the Agency's stated reasons for placing her on a PIP and ultimately removing her; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him as alleged.
To prevail in a disparate treatment claim absent direct evidence of discrimination, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Petitioner carries the initial burden of establishing 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 Constr. Co. 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, 441 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). Once the Agency has met its burden, Petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, the Commission finds that even assuming, arguendo, that Petitioner established a prima facie case of discrimination based on reprisal, the Agency provided legitimate, non-discriminatory reasons for her placement on the PIP and ultimate removal - namely that she was performing at an unacceptable level in two critical elements of her job, and that she failed to improve her performance in 60 days while on a PIP. The record reflects that the Agency provided Petitioner with very specific performance tasks and deadlines, and that she failed to meet them by large margins. Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to place her on a PIP and ultimately remove her were based on discriminatory animus.
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 unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
_3/7/17_________________
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.
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