0320140053
09-17-2015
Petitioner, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Petitioner,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Petition No. 0320140053
MSPB No. DE0752120488I1
DECISION
On May 26, 2014, 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
At the time of events giving rise to this complaint, Petitioner worked as a Human Resources Assistant (Information Systems), GS-0203-07, at the Agency's Western Area Power Administration in Lakewood, Colorado. Petitioner alleged that the Agency retaliated against her on the basis of reprisal for prior protected EEO activity when she was removed from her position, effective August 3, 2012, for "misuse of position to improperly access the confidential Human Resources (HR) records database owned by the Office of Personnel Management."
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency's rationale for removing Petitioner was sustained. Petitioner was found to have improperly accessed other employees' personnel records for no purpose over 20 times. The AJ further found that Petitioner failed to demonstrate that she was retaliated against as alleged. The AJ found that Petitioner did not present any evidence of retaliation beyond the knowledge of two management officials of her prior EEO activity. Petitioner sought review by a full Board. The Board denied the petition for review and found that Petitioner's arguments in her petition for review were not persuasive. The Board found that based on the record Petitioner was not removed because of her prior protected EEO activity. Rather, the Board found that "the record reflects that the proposing and deciding officials considered the sheer volume of instances of [Petitioner's] misconduct in their respective decisions." The Board stated that there was no evidence that any other employees were audited and found to have a similarly high number of improperly accessing confidential records as Petitioner. Petitioner then filed the instant petition.
In her Petition for Review, Petitioner makes numerous arguments. Petitioner reiterates arguments she made before the MSPB regarding the credibility of the MSPB AJ and procedural and due process matters. Petitioner also reiterates arguments regarding the validity of the charges against her and argues that she did not conduct herself in an inappropriate manner. With regard to her reprisal claim, Petitioner argues that she was retaliated against for reporting co-workers who were fighting.
ANALYSIS AND FINDINGS
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).
Preliminarily, we note that the Commission does not have jurisdiction over any procedural issues or matters involving the propriety of the AJ's actions. As such, the Commission will only review the MSPB decision regarding Petitioner's allegations of reprisal.
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). Petitioner 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.
Here, we find that, even assuming arguendo, Petitioner established a prima facie case of retaliation, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as found by the AJ and stated above. Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Petitioner's burden to show that the Agency's proffered reasons were a pretext for reprisal. We find that Petitioner did not offer any more than her assertions that the Agency was motivated by retaliation. We note that the record is replete with numerous incidents of misconduct which were found to have been supported by the evidence in the record by the AJ and the full Board. Petitioner has not offered any material evidence in her petition to question the veracity of those determinations or to otherwise establish that the Agency was motivated by retaliatory animus.
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. 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 (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 Petitioners Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton
Carlton M. Hadden, Director
Office of Federal Operations
__9/17/15________________
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