0320150007
03-18-2015
Petitioner, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
Petitioner,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Petition No. 0320150007
MSPB No. DA0752140086I1
DECISION
On October 10, 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, and the Age Discrimination in Employment Act of 1967.
BACKGROUND
Petitioner worked as a GS-14 Safety and Occupational Manager at the Agency's Southwestern Power Administration Office of Corporate Services (CFO) facility in Tulsa, Oklahoma. Petitioner alleged that the Agency discriminated against her on the bases of sex (female), age (71), and reprisal for prior protected EEO activity when: the Agency removed her from her position, effective September 30, 2013 for being in an Absent Without Leave (AWOL) status from January 28, 2013 through September 30, 2013.
The record reveals that in 1999, Petitioner initiated litigation against the Agency for gender discrimination. Shortly before the case went to trial in October 2000, the case settled. Petitioner agreed to withdraw her lawsuit with prejudice, and the Agency agreed to place Petitioner in a GS-14 position while she was employed at the Agency. Petitioner alleges that while her pay and assignments have reflected her placement at the GS-14 level, she has never been able to advance, or move into positions where she would be promoted. Petitioner stipulated to the fact that she was AWOL since January 28, 2013.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on May 2, 2014 affirming the Agency's removal action. The AJ's decision found that the Agency established by a preponderance of the evidence that Petitioner was AWOL, and found that Petitioner failed to present preponderant evidence to support her contention that the removal was based on her gender, age or in reprisal for prior EEO activity. Petitioner sought review by the full Board. The Board denied the Petition for Review and affirmed and adopted the AJ's initial decision.
Petitioner subsequently filed the instant petition. In the Petition, Petitioner reiterates her concerns that her removal was the result of discrimination, and formally declared "Prohibited Personnel Practices (PPP)." Petitioner contends that every position she was put in after the settlement agreement was controlled by the agreement. As a result, Petitioner argues that she was not always working in GS-14 jobs, but in lower grade positions whose descriptions had been revised so that they appeared to be GS-14 positions.
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).
The Commission finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on age, gender, and in reprisal for prior EEO activity, the Commission agrees with the MSPB that Petitioner failed to establish that the decision to remove her was based on any of these protected bases. Petitioner concedes to being in an AWOL status from January 28, 2013 through September 30, 2013, and that Petitioner made it clear by email dated January 11, 2013, that she was unwilling to return to work until her position was "correctly classified" and she was "placed in a legitimate GS-14 position." We concur with the Agency that attendance is a basic condition of employment, and find no persuasive evidence of discriminatory age, gender or retaliatory animus surrounding Petitioner's removal.
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 (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
_3/18/15_________________
Date
2
0320150007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320150007