0320090036
04-10-2009
Byron Lee, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Byron Lee,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0320090036
MSPB No. PH0432080235I2
DECISION
On February 24, 2009, 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 his 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.
Petitioner alleged that he was discriminated against on the basis of
reprisal for prior protected EEO activity under Title VII, when on
July 22, 2007, the agency denied his within-grade-increase (WIGI), and
on January 14, 2008, he was removed him from his position as a Human
Resources Specialist.
The record reflects that in the Notice of Proposed Removal, the agency
stated that petitioner's performance was unacceptable as measured
against his 2007 Performance Assessment and Communications System
(PACS) Performance Plan. According to the record, under the agency's
PACS system for the 2007 performance appraisal period which began on
October 1, 2006, petitioner was provided with a performance plan which
described the four critical elements of his position. In conformity with
the plan, a Human Resources Specialist's job performance is evaluated
on how well he performed with regard to four critical job elements: 1)
Interpersonal Skills; 2) Participation; 3) Demonstrates Job knowledge;
and 4) Achieves Business Results.
Further review of the record reveals that the agency placed petitioner on
a so-called "Opportunity To Perform Successfully" plan (OPS). The agency
maintained that petitioner was placed on the OPS plan because he had been
unable to improve his performance during a prior performance assistance
period. In the OPS plan, petitioner was informed that his performance
was unsuccessful in three of the four critical elements of his position,
namely: Interpersonal Skills; Demonstrates Knowledge; and Achieves
Business Results. Subsequently, the agency withheld petitioner's WIGI
because his work was not at an acceptable level of competence. The agency
ultimately removed petitioner based on unsatisfactory performance. The
agency concluded that, despite its best efforts to improve petitioner's
work performance which even included mentoring by two of petitioner's
superiors, petitioner's work assignments were continuously less than
satisfactory and below a "fully successful" rating.
Following a hearing, the Administrative Judge (AJ) found that the
testimony of agency witnesses was more credible than that of petitioner.
With respect to petitioner's claims of reprisal discrimination,
the AJ found that petitioner failed to show that agency officials
were motivated by discriminatory animus. The AJ strongly noted that
the performance standards, under which petitioner's performance was
deemed unacceptable, are valid; and petitioner "was duly notified of
the performance standards." The AJ maintained that the record supports
petitioner's removal by the agency. In effect, petitioner failed to show
a nexus between his prior EEO activity and the agency's actions or that
the actions were a pretext for unlawful discrimination. Petitioner sought
review by the full Board, but the Board denied petitioner's petition
for review. Thereafter petitioner filed the instant petition with the
Commission, where he made arguments mainly asserting that the AJ applied
an erroneous standard of review while excluding relevant evidence which
would purportedly show that management conspired to retaliate against
him.
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).
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 (W0408)
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 (Z1008)
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
April 10, 2009
__________________
Date
2
0320090036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090036