0320120057
03-20-2013
Danialle D. Rose, Petitioner, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Danialle D. Rose,
Petitioner,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Petition No. 0320120057
MSPB No. DE0752110166I1
DECISION
On July 2, 2012, 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.
BACKGROUND
Petitioner worked as a Social worker at the Agency's Fort Thompson Health Care Center, Indian Health Services (IHS) facility in Fort Thompson, South Dakota. Petitioner alleged that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when, starting on January 13, 2010 and continuing until her removal from her position on April 7, 2010, she was subjected to a hostile work environment which has included being treated in a disrespectful manner, abusive emails, leave issues, disciplinary action, and completing training requirement which had already been completed.
Petitioner filed a mixed case complaint and the Agency issued a decision finding that Petitioner was not discriminated against as alleged. Thereafter Petitioner filed an appeal with the MSPB. The MSPB accepted the appeal of the issue of whether Petitioner was appropriate removed from her position, effective April 7, 2010. During the pre-hearing process, Petitioner requested that this case be consolidated with a case that was pending before an EEOC Administrative Judge (EEOC Hearing No. 443-2010-00190X). The MSPB Administrative Judge (MSPB AJ) declined to consolidate the cases, noting that the Petitioner failed to demonstrate that the MSPB had jurisdiction over the matter pending before the EEOC. The MSPB AJ issued a decision on April 27, 2012, reversing the Agency's removal decision, but finding that Petitioner failed to demonstrate that she was subjected to retaliation and sex based discrimination when she was removed from the position or that the Agency was motivated by discriminatory animus.
In her brief in support of her petition for review, Petitioner states that she is not appealing the MSPB AJ's decision regarding her removal. Petitioner argues that the MSPB AJ erred when he did not consolidate the case pending before the EEOC with this instant case. Further, Petitioner argues that she demonstrated that she was discriminated against as alleged.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints 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).
Preliminarily, with regard to Petitioner's argument that the MSPB AJ erred when he did not consolidate the MSPB case with the EEOC case, we note that EEOC regulations provide that the Commission has jurisdiction over allegations of discrimination raised in connection with an action appealable to the MSPB. 29 C.F.R. � 1614.302. Here, the MSPB AJ declined to consolidate the two cases because he found that the MSPB lacked jurisdiction over the matter pending before the EEOC. The Commission has no jurisdiction over procedural determinations made by the MSPB. Accordingly, we decline to address this matter.
With regard to Petitioner's contentions that the MSPB AJ erred in finding that she was not discriminated against with regard to her removal, we note that in order to prevail in a disparate treatment claim such as this, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She 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 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 804 n.14. 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). At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming, arguendo, that Petitioner established a prima facie case of sex and reprisal discrimination, we note that the Agency articulated the following reasons for removing Petitioner: Petitioner made inappropriate statements (3 incidents); showed a lack of courtesy and respect in the workplace (3 incidents); failed to follow instructions (1 incident); and failed to follow protocol (1 incident). Although the MSPB AJ found that the reasons given by the Agency for Petitioner's removal were not sustained, he found no evidence that the Agency lied or that its actions were motivated by discriminatory animus. We find that Petitioner has presented no persuasive reason to disturb the MSPB AJ's findings.
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 (Z0610)
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
___3/20/13_______________
Date
2
0320120057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4 0320120057