0320140075
05-19-2015
Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320140075
MSPB No. AT0752130281I1
DECISION
On August 28, 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. For the following reasons, the Commission concurs with the MSPB decision which found that Petitioner failed to demonstrate that she was subjected to reprisal and race/color discrimination.
BACKGROUND
Petitioner worked as an Exceptional Family Member Program Coordinator, GS-11 at the Agency's Army Community Services Division in Fort Benning, Georgia. Petitioner alleged that the Agency discriminated against her on the basis of race (African-American), color (Black), and reprisal when she was removed from her position for conduct unbecoming of a federal employee.
A hearing was held and thereafter an MSPB Administrative Judge (MSPB AJ) issued an initial decision finding that Petitioner was issued a Notice of Removal for conduct unbecoming of a federal employee. Specifically, the Agency charged that an investigation revealed that the Petitioner, by her frequent use of profanity concerning and toward coworkers and supervisors, engaged in conduct over an extended period of time that created an intimidating, hostile, or offensive work environment for other employees.
The MSPB AJ found that witnesses credibly testified about Petitioner's behavior and the hostile work environment that her behavior created. Petitioner denied fostering a hostile work environment and indicated that she had not said such things but the MSPB AJ found that Petitioner was not credible. Petitioner alleged that she was subjected to termination because of her race. The MSPB AJ determined that there was a special combination of circumstances at play which included the extreme nature of the Petitioner's profanity, and the hostile environment that Petitioner created by the daily use of profanity in the presence of her coworkers supported the deciding official's determination that Petitioner's misconduct was extremely serious and revealed her lack of potential for rehabilitation, this outweighed her many years of unblemished service. The MSPB AJ found that the removal penalty was within the bounds of reasonableness for the sustained misconduct. The MSPB AJ determined that the Petitioner also failed to prove her affirmative defenses. Petitioner alleged that she was subjected to discrimination because following her removal a white person was placed in her position. The MSPB AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was removed for conduct unbecoming a federal employee. The MSPB AJ found that Petitioner failed to show that the Agency's articulated legitimate, nondiscriminatory reason was pretext for discrimination.
Thereafter, Petitioner sought review by the full Board. The Board denied the petition for review and affirmed the initial decision. Petitioner then filed the instant petition. On appeal, Petitioner, among other things, with respect to her affirmative defense of race discrimination, asserts that in the initial decision, the AJ dispensed with her racial discrimination claims by simply stating that she only made a "bare allegation unsupported by factual assertions" referring to her failure to identify comparators and a lack of evidence in the record supporting her claim. Petitioner asserts that this is not a comparator based discrimination claim. Petitioner maintained that her race was a material factor in the decision to remove her from federal service which in all probability explained the aggressive prosecution of this case by her former supervisors. Petitioner also asserts that race was a factor as race was discussed with the supervisors, in that it was mentioned when a black coworker did not get the job and that a white person had not been recently hired in the office and further a coworker indicated that she believed that had it been a white person it would have been a different situation and termination would not have been considered. Moreover, Petitioner maintains that a white male employee was also the subject of a 15-6 investigation for improper conduct, but he was not placed on administrative leave or subject to deprivation of employment. Petitioner also notes that her position was filled by a white woman.
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).
Even if we assume arguendo that Petitioner established a prima facie case of race, color and reprisal discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated for conduct unbecoming when it was discovered that she was creating a hostile work environment by using profanity towards, supervisors, coworkers, and clients. To show pretext, Petitioner contends that two coworkers believed that had Petitioner been white termination may not have been suggested. She also maintains that a white male that had a hearing regarding unbecoming conduct was not escorted from the promises, and terminated. Additionally, she asserts that cursing and other inappropriate expressions were common and prevalent in the workplace at the time, and that race was mentioned in the office.
We find that even if these contentions are true, Petitioner has not established pretext. The coworkers in question expressed their opinion, but provided no evidence that Petitioner's race, color or previous EEO activity was a factor. And, while race may have been discussed in the office, no evidence has been presented that Petitioner was treated in a discriminatory fashion. In fact, Petitioner was in a leadership position and had earned excellent performance ratings over the years. We find that it was not until a coworker complained to management about Petitioner's behavior and divulged that she had referred to the Director, her first-line supervisor, as a "fat bitch;" had referred to other coworkers as "bitches;" and had referred to clients in a derogatory manner that an investigation was initiated. Further, while Petitioner maintains that a white male was subjected to a conduct unbecoming investigation, Petitioner failed to show that he was similarly situated to her. In fact, Petitioner failed to identify anyone who had behaved in the same manner that she had but was permitted to stay with the Agency. Further, even though cursing may have been common in the office, no evidence was produced that such behavior was exhibited by those in leadership positions and there was no evidence that others outwardly referred to their supervisory chain in a derogatory manner. We find that Petitioner failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. 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.
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.
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
_5/19/15_________________
Date
2
0320140075
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140075