0320120059
03-15-2013
Gwendolyn Waggoner, Petitioner, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Gwendolyn Waggoner,
Petitioner,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320120059
MSPB No. DA-0752-10-0365-I-2
DECISION
On July 30, 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. For the following reasons, we CONCUR with the MSPB finding of no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as an Operations Plan Management Assistant GS-5 at the Agency's 97th AMW, Altus AFB, in Oklahoma. 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 May 18, 2009, she was removed from her position.
Specifically, on April 17, 2009, the Agency proposed Petitioner's removal based on charges of failure to maintain a regular work schedule, unauthorized absences of more than eight hours, and making false statements to her supervisor concerning time and attendance. The Notice of Removal indicated, among other things, that between July 23, 2008 to April 17, 2009, Petitioner had missed a total of 349.75 hours, including 88.00 hours of sick leave, 135 hours of annual leave, 47.25 hours of leave without pay, and 79.5 hours of absence without leave. Petitioner's removal was to be effective May 18, 2009. Petitioner maintained that her supervisor was demeaning, degrading, and abusive towards her with regard to her work performance as well as his treatment of her personally. Petition maintained that she was in a majority male environment and was exposed to a lot of demeaning behavior which added to her stress. Petitioner also argued that complaints about her work performance were exaggerated because if she was not performing adequately than why was she constantly given additional duties. Petitioner filed a mixed case EEO complaint which alleged that she had been discriminated against on the bases of reprisal, color and sex. The Agency issued a final decision on April 2, 2010, which found that Petitioner's removal was not the result of unlawful discrimination. Petitioner thereafter filed an appeal with the Board.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision dismissing Petitioner's appeal as moot. The AJ found that the parties had engaged in settlement discussions and the Agency had unilaterally withdrawn the removal action and had reinstated Petitioner to a position in the same grade and duty location as she encumbered previously. Her reinstatement was effective March 10, 2011. Petitioner also received full back pay and benefits. The AJ indicated however, that generally, such a complaint would be deemed automatically moot; however, since Petitioner requested compensatory damages, a hearing was held.
The AJ noted that the Notice of Removal indicated that Petitioner had been repeatedly warned to maintain regular time and attendance and had been repeatedly counseled. Moreover, it was revealed that in an attempt to address Petitioner's concerns regarding the fact that her supervisor's behavior contributed to her absenteeism, the Agency detailed Petitioner to the Chaplain's office where she had no contact with her supervisor. Notwithstanding however, her time and attendance was still found to be unacceptable. It was noted that during the 17 duty days, she had been on time only 9 days, absent for 6 days and late on 2 days.
Petitioner alleged that the removal was taken in reprisal for prior EEO activity; and that the action was the result of discrimination based on her color and sex. The AJ found that Petitioner provided no evidence which showed that her removal was based on reprisal for her participation in protected EEO activity. In fact, Petitioner's witnesses as well as Petitioner herself testified that she had a time management problem. The AJ found that Petitioner provided no evidence other than that she had a feeling in her heart, which suggested that the removal action was issued based on reprisal.
Further, the AJ found that Petitioner failed to show that her color and sex were considered with regard to the Removal Notice. Again, witnesses indicated that Petitioner had a time management problem. One witness also indicated that Petitioner was a terrible employee who expressed hostility and anger at every opportunity, and whose loud and obnoxious demeanor displayed unprofessional behavior. The AJ found that Petitioner failed to show that other employees outside of her protected bases were treated more favorably. Notwithstanding, the AJ indicated that, even assuming arguendo, that Petitioner established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Petitioner was removed from the Agency due to her tardiness and absenteeism, which she did not dispute. The AJ found that Petitioner failed to present any evidence that the Agency's explanation was false or that their decision was pretext for discrimination. Accordingly, the AJ found that Petitioner failed to present persuasive evidence that the decision to remove was based on discrimination.
Petitioner filed a petition for review with the full Board. The Board denied Petitioner's review because there was no new, previously unavailable evidence and also found that the AJ made no error in law or regulation that affected the outcome. Petitioner then filed the instant petition.
CONTENTIONS
Among other things, Petitioner contends that the MSPB's order did not contain any statement or instructions regarding 29 C.F.R. 1614. Petitioner also argues that it was her supervisor's behavior that contributed to a hostile work environment and that she hopes the Commission can see this.
In response, the Agency contends that Petitioner's petition for review should be denied. The Agency argues that the MSPB decision finding no discrimination does not contain an incorrect interpretation of any applicable law, rule, regulation or policy directive. The Agency also maintains that the decision is supported by the evidence in the record. Specifically, the Agency argues that it articulated a legitimate, nondiscriminatory reason for Petitioner's removal, namely, Petitioner was issued a Notice of Removal because of her history of tardiness and absenteeism, which is not in dispute. The Agency maintains that Petitioner failed to show that the Agency's articulated reasons were pretext for discrimination.
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).
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 discrimination. We find that, assuming arguendo, that Petitioner established a prima facie case of reprisal and discrimination as to all bases, the evidence shows that the Agency articulated a legitimate, nondiscriminatory reason for its actions, namely, that Petitioner was issued a Notice of Removal because of her history of tardiness and absenteeism. We find that other than Petitioner's conclusory statements, she has not provided any persuasive evidence which shows that the Agency's reasons were pretext for discrimination or that its actions were motivated by discriminatory animus. Further, we do not find that Petitioner has demonstrated that the incidents involved in her removal were severe or pervasive enough to establish a hostile work environment. Accordingly, 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
___3/15/13_______________
Date
2
0320120059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320120059