Georgeann R.,1 Petitioner,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 25, 2017
0320170037 (E.E.O.C. Jul. 25, 2017)

0320170037

07-25-2017

Georgeann R.,1 Petitioner, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Georgeann R.,1

Petitioner,

v.

Robert M. Speer,

Acting Secretary,

Department of the Army,

Agency.

Petition No. 0320170037

MSPB No. DE0752140558I2

DECISION

On April 11, 2017, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that the Agency discriminated against her as alleged.

BACKGROUND

Petitioner worked as a Technical Writer-Editor, GS-1083-12 at the Agency's Communications Security Logistics Activity (CSLA) Information Security Division in Fort Huachuca, Arizona. Petitioner retired pursuant to a Voluntary Separation Incentive Pay (VSIP) with Voluntary Early Retirement Authority (VERA) effective September 3, 2013.

Prior to the EEO complaint forming the basis of the instant Petition, Petitioner filed three previous of EEO complaints between July 2011 and February 2012. The record reflects that all Responsible Management Officials (RMOs) were aware of each complaint. The events resulting in Petitioner's retirement originated with her Type 1 diabetes combined with other health conditions arising from various occupational injuries she sustained in 2011. From April 26, 2011 through January 28, 2013, when Petitioner first filed a formal complaint with the Agency's EEO office, she went through a series of complications going in and out of work to recover from her injuries. During this period, Petitioner was also counseled several times on her performance, being advised that it was substandard because she was not meeting the "required metrics." Petitioner also made several requests for reasonable accommodations during this time. The record reflects that on January 31, 2013, management prepared a Memorandum for Record in order to lay the foundation for placing Petitioner on a Performance Improvement Plan (PIP).

In her formal complaint initially filed on January 28, 2013, and amended nine times with a final amendment on January 10, 2014, Petitioner alleged that the Agency discriminated against her and subjected her to discriminatory harassment on the bases of national origin (Hispanic), sex (female), religion (atheist), disability, and reprisal for prior protected EEO activity under Title VII when she was subjected to involuntary retirement effective September 3, 2013. The Agency issued a Final Decision (FAD) providing Petitioner with appeal rights to the MSPB. Petitioner subsequently filed an appeal, and requested a hearing, which forms the basis of this Petition.

A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner's retirement was coerced, and should be reversed. Specifically, the AJ found that, contrary to the Agency's assertions, placing Petitioner on a PIP did not take place in a vacuum without any regard for her medical conditions and requests for reasonable accommodations - while not precluded from addressing performance issues, reasonable accommodations must also be provided. The AJ also found that Petitioner was not placed on a bona fide PIP, and that this fact, along with the Agency's failure to process her accommodation requests in a timely manner, would have resulted in a reasonable person felling coerced into retiring. Finally, the AJ determined that the Agency's actions were intentional. The AJ denied each of Petitioner's affirmative defenses of disability and reprisal discrimination, ultimately finding no discrimination. 2

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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 filed the instant petition.

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 specifically with respect to Petitioner's claim of reprisal discrimination when she was subjected to involuntary retirement; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the AJ correctly determined that Petitioner did not establish that the Agency discriminated against her, as alleged.

To prevail in a disparate treatment claim absent direct evidence of discrimination, a 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. A 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, the 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, we find that the Agency did not subject Petitioner to disparate treatment based on reprisal. The Commission finds that, even assuming arguendo Petitioner established a prima facie case of reprisal discrimination for prior EEO activity, the Agency provided legitimate, non-discriminatory reasons for placing her on the PIPs and other actions which led to her subsequent involuntary retirement. The record makes clear that Petitioner was advised on several occasions that her performance was not up standard, and that the failure to improve her performance would come with additional consequences. Additionally, the record is void of any evidence that Petitioner's EEO activity impacted any of the Agency's decisions regarding the PIP or any other corrective action taken.

With respect to her disability discrimination allegation, Petitioner was unable to establish that the involuntary retirement was the result of her disability status, or denial of any reasonable accommodation. While the MSPB decision makes clear that the Agency failed to engage in the interactive process with Complainant, Commission precedent establishes that an agency cannot be held liable solely for a failure to engage in the interactive process. Liability for a failure to engage occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, EEOC Request No. 05A30114. Here, the record evidence supports that Petitioner was not able to perform the essential functions of her position with or without accommodation. Furthermore, Petitioner did not establish that there was an accommodation available which would have enabled her to perform the essential functions of her position or that there was a vacant, funded position for which she was qualified and to which she could have been assigned.

Like the MSPB, the Commission finds that Petitioner failed to establish that the involuntary retirement was based on any discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the involuntary retirement was based on her disability, or reprisal for any 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 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

__7/25/17________________

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.

2 Petitioner subsequently withdrew her affirmative defenses of discrimination based upon national origin (Hispanic), sex (female), and religion (atheist).

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