0320140072
07-08-2015
Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Petition No. 0320140072
MSPB No. PH0752130095I1
DECISION
On August 18, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Petitioner worked as a Labor Relations (LR) Specialist in the Philadelphia Metropolitan District, in Philadelphia, Pennsylvania. Petitioner alleged that the Agency discriminated against her on the bases of disability (mental) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when effective October 12, 2012, the Postmaster of Philadelphia (PM) reduced Petitioner's grade and pay by demoting her from an EAS-19 LR Specialist to an EAS-17 Supervisor of Vehicle Supplies. Petitioner appealed the PM's decision to the MSPB.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding Petitioner was disciplined due to a comment made by Petitioner during a settlement conference in another legal matter. Petitioner revealed that she knew of the salary percentage increase received by her Manager (S1), when he was promoted from an LR Specialist to the LR Manager. As a result of her disclosure, the Agency conducted an investigation to determine whether she had improperly accessed the eOPF system from November 17, 2008 to April 11, 2011. The investigation revealed that Petitioner had accessed the eOPF files of three EAS employees.
The Agency did not conduct a pre-disciplinary interview until May 1, 2012, because Petitioner had an extended absence from duty from May 2011 to March 2012. The Senior Manager of Post Office Operations (SMPO), a LR Specialist for the Eastern Area, and Petitioner were at the interview. Petitioner, with her representative, answered questions posed by SMPO.
When asked by SMPO why she accessed one employee's (E1) eOPF file, Petitioner stated that she did it because Petitioner identified E1 as a comparator in an EEO complaint she had filed. With regard to the second employee (E2) and the third employee (E3), Petitioner stated she viewed the eOPF files because they were related to her EEO complaint. As a result, of these answers, on May 30, 2013, SMPO issued Petitioner a notice of proposed reduction in grade and pay.
In Petitioner's September 27, 2012, written response to the proposal, Petitioner stated she was not provided a copy of the documents that the decision was based on. Further, Petitioner asserted that E1, E2, and E3 requested or instructed her to access the documents.
At the hearing, Petitioner provided testimony from E1, E2, and E3 stating that she had their permission to access their eOPF files. Petitioner's former Manager of LR (FMLR) testified that Petitioner was instructed to obtain documents from the eOPF files of E1, E2, and E3. However, the MSPB AJ did not find Petitioner or FMLR's testimony regarding E3's permission to access her file to be persuasive. The MSPB AJ found that E3's testimony did not substantiate that she gave Petitioner permission to access her eOPF. The MSPB AJ also noted that even if E3 had given such permission, Petitioner admitted that she accessed E2 and E3's eOPF files to support her EEO complaint. At the hearing, Petitioner also admitted that she used E1's information in her EEO complaint.
The MSPB AJ noted that FMLR had testified that it was improper for an employee to access another employee's eOPF to support her own EEO complaint. The MSPB AJ found even though FMLR testified that Petitioner did not violate any regulations by accessing the information for her EEO complaint, the eOPF had a warning that appeared before an employee gained access to the system. The warning provided that the program was for authorized employees only and not a self-service application. The AJ noted that both E2 and E3 could have obtained the information they needed from eOPF by requesting it from an HR Generalist or accessing them by the self-service application. The MSPB AJ found that Petitioner had used the official access privilege of her position to access personal information without an official authorized reason.
The MSPB AJ found that Petitioner did not demonstrate that the Agency was motivated by reprisal when it demoted her. The MSPB AJ found that Petitioner did not put forth any evidence to support her assertions that S1, her second line-Manager (S2), or PM were motivated by retaliatory animus. Petitioner argued that the Agency erred by making SMPO and LR Specialist for the Eastern Area the deciding officials. The MSPB AJ found, however, that the Agency did not err because there was a conflict in having S1 and S2 issue the decision after Petitioner had previously filed a different EEO complaint against them.
With regard to Petitioner's allegation of disability discrimination, the MSPB AJ found that she did not present any evidence to show that she had a physical or mental impairment that substantially limited any major life activity. Petitioner testified that she had an extended absence due to a broken foot and toe, and that S1 was aware that she was treated by a mental health provider. However, the MSPB AJ found that Petitioner failed to show that she suffered from any impairments or that she was regarded as disabled. Petitioner sought review by the full Board.
The Board found, in relevant part, that the MSPB AJ properly found that Petitioner did not show that she was subjected to reprisal as alleged. The Board noted that Petitioner argued that the Agency retaliated against her by initiating the investigation into her eOPF access after she disclosed the information during an EEO proceeding. The Board, however, did not find it persuasive and noted that her conduct was not shielded from discipline because the information was improperly obtained through unauthorized access. The Board further noted that neither the proposing or deciding officials were aware of Petitioner's prior EEO activity. The Board affirmed the initial decision. Petitioner then filed the instant petition.
On appeal, Petitioner reiterates arguments made to the full board. Mainly, Petitioner argues that she was not granted due process when the Agency did not inform her who made the demotion decision. Further, Petitioner requests that the Commission find that the Agency's actions were retaliatory and consolidate another complaint to include these allegations.
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 will not disturb the Board's decision regarding due process. Rather, the Commission will review whether the MSPB correctly determined that Petitioner failed to establish that she was subjected to discrimination based upon her prior EEO activity, and alleged disability. We find that Petitioner has not offered any persuasive evidence to show that the AJ erred in finding that she was not discriminated against as alleged.1 Further, we note that since this matter as been adjudicated, we decline to remand it to be consolidated as part of another complaint.
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
____7/8/15______________
Date
1 For purposes of our analysis only, we assumed that Petitioner was in fact an individual with a disability.
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0320140072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140072