0320100006
01-05-2010
Laura R. Boltz, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Laura R. Boltz,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0320100006
MSPB No. DE0752080436I1
DECISION
INTRODUCTION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of an Opinion and 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events at issue, petitioner was employed by the
agency in the position of Assistant Regional Counsel, GS-905-14, Office
of General Counsel in Denver, Colorado. Petitioner timely filed an EEO
complaint alleging that she was discriminated against on the bases of
sex (female), age (42), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when she was removed from
her position effective November 23, 2007. On June 25, 2008, the agency
issued its final decision on the complainant, concluding no discrimination
occurred. Thereafter, petitioner filed an appeal with the MSPB.
Briefly, the agency proposed petitioner's removal based on the charge of
"inappropriate behavior by an Assistant Regional Counsel." Petitioner
was accused of making three false statements in a motion for extension of
time to file a response brief filed with the District Court in July 2007.
The record indicates that an attorney in petitioner's office retired in
July 2007, and her cases were reassigned among the staff. Among them
was one (hereinafter referred to as "the B case") that was reassigned
to petitioner. On July 25, 2007, petitioner was contacted at home to
determine whether she had filed a response brief for the B case, which was
due on July 20, 2007. Petitioner had not filed the brief, asserting that
she did not recall being assigned the B case. To rectify the situation,
petitioner promptly filed a motion for an extension to file the brief with
the Court. In support of her motion for the extension, petitioner stated
that: (1) the retired co-worker's caseload was assigned to petitioner
and other attorneys in the office after July 13, 2007; (2) due to a
docketing error, she was unaware that the B case had been assigned to
her until July 25, 2007; and (3) she was currently busy working on a
matter pending with the EEOC in which she was representing the agency.
Information in the record indicates that it is unclear exactly when the B
case was reassigned to petitioner, but the agency argued that it was no
later than July 2, 2007, and that petitioner should have known she had
the case. Therefore, the agency claimed that petitioner's assertions to
the Court in support of the motion for an extension were false. Further,
the agency argued that petitioner had not done any work on the EEOC case
(where she represented the agency) during the month of July. According to
agency witnesses, upon reading petitioner's motion, and feeling that the
three reasons given for requesting the extension were false, a meeting
was held between petitioner and her supervisors. Thereafter, petitioner
was told to leave her office and was later terminated from her position.
In the notice of proposed removal, each of the three statements proffered
by petitioner in support of her motion to the Court for the extension
were cited as a separate specification of "inappropriate behavior"
to justify the removal.1
Following a hearing on the matter, an MSPB Administrative Judge (AJ)
found that, with respect to specification 1, there was no evidence that
any misstatement petitioner made regarding the date the retired coworker's
caseload was reassigned to her occurred intentionally. The AJ found that
although it appeared that all the retired coworker's cases were reassigned
to other staff, including petitioner, by her last day of work (July 13,
2007), petitioner's testimony was credible that she believed that not
all of the co-worker's cases had been reassigned by that date. The AJ
noted that the supervisors admitted that July had been a chaotic month,
and further that the retired co-worker herself testified that she did
not believe all her the cases had been reassigned by her last day on
July 13.
With respect to specification 2, the AJ found that the agency did not
establish that petitioner was aware that case B had been assigned to her
until she was called on July 25, 2007, and asked whether she had filed
the brief in the case. The AJ noted that petitioner did not represent
to the Court that the case was not assigned to her, only that she was
unaware of the assignment. The AJ found petitioner's testimony credible
and further found that it was corroborated by the paralegal who called to
ask about the brief. The paralegal testified that petitioner was upset
and "horrified" upon being told that the case was assigned to her and
she had missed the due date.
As to specification 3, the AJ found that petitioner's statement that
she was working on an EEOC case was unintentional. The AJ found that
petitioner's testimony that she inadvertently included the language when
she "cut and pasted" from a previous document was credible. The AJ found
that there was no reason for petitioner to fabricate this language.
However, although the AJ found that there was no intent on petitioner's
part to fabricate the matters cited in the specifications, he concluded
that because the agency used a general charge such as "inappropriate
conduct" it did not have to prove intent. Therefore, since some incorrect
statements were made to the Court, albeit unintentionally, the AJ found
support for the agency's charges. However, the AJ determined that
removal was too harsh a penalty and reduced the disciplinary action
issued to a letter of warning.
With respect to petitioner's discrimination and reprisal claims, the AJ
noted that petitioner failed to show that the agency's actions were a
pretext for reprisal or discrimination. Although petitioner provided
testimony and witnesses from other females regarding the atmosphere
in the office, the AJ found that petitioner did not show that others
were treated more favorably in substantially similar circumstances.
The AJ noted that management's testimony that there was concern about
the incorrect statements proffered to the Court because petitioner
could lose her status as a Special Assistant United States Attorney.
The AJ reiterated that petitioner was not removed for missing a deadline,
but rather for the incorrect statements.
Petitioner sought review of the AJ's decision by the full Board. The
Board first addressed petitioner's retaliation and discrimination claims,
concurring with the AJ's determination that she failed to present evidence
that other attorneys were treated more favorably despite engaging
in inappropriate behavior by making allegedly false claims in a court
filing. The Board also found that there was no error by the AJ in focusing
on whether petitioner had met her overall burden of proving discrimination
or retaliation rather than on establishing a prima facie case. Thus, the
AJ's findings concerning petitioner's discrimination claims were upheld.
However, the Board found that the agency used terms in its removal notice
such as petitioner "knew" and "was well aware" that the case had been
assigned to her. Additionally, the agency stated that the statements were
"false" and that petitioner "intentionally misstated" the true facts.
Thus, the Board found that the agency's charges included the specific
intent required for a falsification charge. The Board held that the
agency had to prove that petitioner knowingly provided wrong information,
with the intent of defrauding, deceiving, or misleading the agency.
Given the AJ's findings that petitioner did not intend to mislead the
court, the Board found that the agency's specifications supporting
the removal could not be sustained. As a result, the Board reversed
the AJ's initial decision upholding the charges and finding that some
disciplinary action was appropriate in this case. The Board ordered the
complete cancellation of the disciplinary action and the restoration of
petitioner to her position with an appropriate backpay award.
Although she prevailed before the Board and has been reinstated to
her position with the agency, petitioner filed the instant appeal,
requesting that this Commission reverse the Board's conclusion that the
removal, although improper, was not the result of unlawful discrimination
or retaliation. Petitioner asserts that she is entitled to additional
relief such as compensatory damages to make her whole for the harm she
suffered as a result of the removal.
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).
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 generally 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 Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). As noted by the MSPB AJ, management
witnesses testified that the removal action was instituted because
of a belief that petitioner had made false statements to the Court in
support of her motion for an extension of time. This is a sufficient
articulation by management of its reasons for instituting the removal
action against complainant.
To ultimately prevail, petitioner must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy,
EEOC Request No. 05950351 (December 14, 1995). The Commission finds
assuming petitioner has established a prima facie case of discrimination
and reprisal, she has failed to show that the agency's reasons were a
pretext for reprisal or discrimination.
Petitioner argues that she produced other evidence that discrimination
and/or retaliation played a role in the decision to terminate her.
She points to the testimony of several female coworkers who were also
over 40 years old, and had filed EEO complaints, who expressed their
perceptions that the supervisors (who were also responsible for the
removal action against petitioner) treated them differently and less
favorably than other attorneys in the office.2 The MSPB AJ specifically
considered this testimony in his decision, but concluded that it did
not amount to a "convincing mosaic" of discriminatory treatment towards
petitioner. Petitioner argues that the MSPB AJ erred in ruling that
evidence presented regarding the lack of discipline of another attorney
was not relevant to proving discrimination in this case. We note that
the AJ justified his conclusion based on his finding that the alleged
misconduct committed by the comparator (alleged inappropriate conduct
with two women in the office) was very dissimilar to the petitioner's
alleged misconduct (falsification of a court document). Substantial
evidence of record supports the AJ's ruling in this matter. We do
note that petitioner also presented evidence suggesting that this same
comparator also submitted a motion to the Court containing errors.
However, the AJ found credible the supervisor's testimony that, unlike
petitioner, any errors in the comparator's motion "were not material
misrepresentations, more carelessness in what he called the document,
what he named it." Hearing Transcript, October 30, 2008, at 174.
There is nothing in the record to justify not deferring in this matter
to the credibility determinations of the MSPB AJ.
Petitioner also argues that the MSPB AJ erred in excluding the testimony
of two other similar witnesses on the grounds of irrelevance or cumulative
testimony. Based on our review of the record, we do not find adequate
support for a finding that the AJ abused his discretion in this ruling.
Finally, we note that, while the AJ found that complainant had engaged
in prior, protected EEO activity, he concluded that the evidence in its
totality did not support a finding of an adequate nexus between the EEO
activity and the removal action. Based on our review of the record, we
find that while the evidence of record supports a prima facie showing of
retaliatory motivation, this initial inference was successfully rebutted
by agency management's articulation of legitimate, nondiscriminatory
reasons for the removal action, which petitioner did not prove was a
pretext for unlawful retaliation.
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 or reprisal. 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
January 5, 2010
__________________
Date
1 It is noted that agency management witnesses maintained that petitioner
was not removed because she had not filed the brief by the original
deadline, but solely because the reasons given in her motion for the
extension were false.
The Commission also notes that management witnesses testified that in
July 2007, there was a show cause order pending with a judge against
petitioner, which raised some concern with management. Management
witnesses stated that the judge had ordered petitioner to work with
another attorney and the attorney alleged that petitioner had refused
to do so. The record indicates that the matter was later dismissed
and the judge accepted the explanation that the incident occurred
because of a miscommunication. However, again the record establishes
that the show cause order was not used by management as a reason for
petitioner's termination.
2 These witnesses testified, for example, that their work was excessively
scrutinized, they were criticized in front of others, and threatened
with unacceptable performance evaluations.
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0320100006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320100006