03a10033
02-28-2001
Ernestine Blake, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Ernestine Blake v. Department of the Treasury
03A10033
February 28, 2001
.
Ernestine Blake,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Petition No. 03A10033
MSPB Docket No. NY-0752-99-0127-I-1
DECISION
INTRODUCTION
On December 5, 2000, Ernestine Blake (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (the Commission) for
review of the final order of the Merit Systems Protection Board (MSPB)
issued November 3, 2000, concerning her allegations of discrimination
based on reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The petition is governed by 29 C.F.R. � 1614.303 et seq. The MSPB
found that the agency had not engaged in discrimination as alleged by
petitioner. For the reasons that follow, the Commission concurs with
the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on
reprisal when it terminated her employment as a Collection Analyst,
GS-301-9 constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives and is supported by the record
as a whole.
BACKGROUND
According to the record, petitioner was a 28-year employee of the
agency. Between 1989 and 1995, she filed numerous civil actions based
on discrimination against the agency with the U.S. District Court
(Court). To assist with the expense related to her civil actions,
on two occasions, petitioner requested but was denied appointment of
counsel and, on seven occasions, petitioner requested and was granted
waiver of filing and service fees. On all nine requests, petitioner
significantly under-reported her monthly earned income (under-reporting).
In 1995, the U.S. Department of Justice (DOJ) became aware of petitioner's
under-reportings and gave her an opportunity to correct them with the
Court, seemingly without consequence.<1> Petitioner failed to correct
her under-reportings so DOJ filed a motion, with the Court, to dismiss the
civil actions of petitioner and to impose Rule 11 sanctions. In 1996, the
Court consolidated and dismissed with prejudice all cases involving claims
of employment discrimination filed by petitioner, ordered petitioner to
pay $700.50 as a sanction for her overly litigious behavior, and enjoined
petitioner from filing any further lawsuits without prior approval from
the Court. Criminal charges were filed against petitioner for perjury and
she was arrested, but later released on her own recognizance. The DOJ
deferred prosecution against petitioner contingent upon her complying with
the Court's order, which she did when she paid the $700.50 sanction.
On March 25, 1998, once petitioner's criminal prosecution was no longer
active, the agency issued petitioner a Notice of Proposed Removal for
willfully making false statements in violation of the agency's Minimum
Standards of Conduct. Petitioner submitted a written response to the
Notice but, on June 1, 1998, the responsible management official (RMO),
the District Director, sustained the Notice.
Believing she was a victim of discrimination, petitioner sought EEO
counseling, and, subsequently, filed a mixed case complaint<2> alleging
that the agency discriminated against her based on reprisal (prior EEO
activity). As provided by 29 C.F.R. � 1614.302(d)(1)(i), petitioner
subsequently filed an appeal on the same matter with the MSPB prior to
the agency issuing a final decision. Petitioner stated that the agency's
claims of willful false statements are stale, the significant delay in
disciplinary action by the agency supports her claim of retaliation,<3>
she made the under-reportings in error and not willfully, her 28 years
of relatively unblemished service with the agency and 31 years with the
Federal government should weigh heavily against the removal action.
The agency stated that it could not proceed with disciplinary action
against petitioner while criminal charges against her were active;
it is illogical that an individual would make the same error nine
times, especially an individual with petitioner's work background;<4>
petitioner's actions placed the integrity of the agency in a �bad light,�
particularly because agency employees are held to a higher standard;
petitioner did not show any remorse for her actions; and the agency lost
its trust in petitioner, which was very important for her position.
After an MSPB hearing on the matter, an Administrative Judge (AJ) issued
an initial decision finding that petitioner failed to establish a prima
facie case of discrimination based on retaliation. Specifically, the
AJ found that petitioner failed to show that a causal connection existed
between petitioner's prior EEO activity and the adverse action at issue
here. The AJ affirmed the agency's action. Petitioner subsequently filed
a petition for review to the Board, which was denied. This petition to
the Commission followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on reprisal constitutes
a correct interpretation of any applicable law, rule, regulation or
policy directive and whether said decision is supported by the evidence
in the record as a whole. 29 C.F.R. � 1614.305(c).
When a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the petitioner to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the petitioner
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for discrimination. McDonnell Douglas, 411 U.S. at 804.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must show: (1) that she engaged
in prior protected activity, e.g., participated in an EEO proceeding;
(2) that the RMO was aware of the protected activity; (3) that she
was subsequently disadvantaged by an adverse action; and, (4) that
there is a causal link between the protected activity and the adverse
employment action. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass), affirmed, 545 F.2d
222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10thCir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted).
Petitioner filed several civil actions and administrative complaints
against the agency<5>, all of which the RMO was aware but not an
involved party. In addition, petitioner was removed from her position
for statements made in furthering her employment discrimination cases
against the agency. Based on the foregoing, petitioner established a
prima facie case of retaliatory discrimination.
The burden now shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802. The RMO stated that petitioner willfully
made false statements in violation of the agency's Minimum Standards of
Conduct, which is an action that negatively effected the reputation of
the agency and caused the agency to lose faith in petitioner's integrity.
The RMO stated further that petitioner did not display any remorse for
her actions and that the agency could not implement disciplinary action
against petitioner until the criminal charges against her were resolved.
Because the agency was successful in satisfying its burden, the petitioner
must prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804. Petitioner may do this in one
of two ways, either directly, by showing that a discriminatory reason
more likely motivated the agency, or indirectly, by showing that the
agency's proffered explanation is unworthy of credence. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the petitioner that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Petitioner
stated that she erroneously made wrong statements to the Court and the
statements were made at least three years prior to her removal, which
makes the claims stale; that she paid back the court and service fees via
the $700.50 sanction she paid; and that the criminal charges against her
were dismissed. She stated further that the fact that she was removed
shortly after sending a letter to her congressional representative is
proof of retaliation by the agency.
The Commission is not convinced by petitioner's arguments. Rather,
the Commission agrees with the agency that (1) the probability that an
individual, specifically an individual of petitioner's work background,
would make the same mistake nine times is low, (2) petitioner's actions
are such that the reputation of the agency as well as petitioner's
integrity were put into question, and (3) petitioner's position as a
Collection Analyst required the trust of the agency. Finally, the time
frame for the sequence of events, from petitioner's initial notification
of the under-reportings to her removal, seems justified.
Petitioner failed to show that the legitimate, nondiscriminatory reason
articulated by the agency was pretextual. Thus, petitioner failed to
prove discrimination based on reprisal.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board'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.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 28, 2001
__________________
Date
1See U.S. Department of Justice letter dated
August 18, 1995.
2A mixed case complaint is a complaint of employment discrimination
filed with a Federal agency based on race, color, religion, sex, national
origin, age or handicap related to or stemming from an action that can
be appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. �
1614.302.
3In February 1998, petitioner sent a letter to her congressional
representative detailing the retaliation and harassment that she had
endured from the agency.
4According to the record, petitioner worked in a division of the agency
that collects delinquent taxes, levies wages, files liens, seizes
property, and adjusts tax liability. As a result, petitioner dealt with
figuring individuals' incomes frequently.
5The record revealed that petitioner's last civil action prior to her
removal was in 1995. The record, however, was not clear on whether
petitioner had an administrative complaint within such a time period to
the removal to support a causal connection.