0320120066
07-24-2014
Petitioner, v. Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
Petitioner,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Petition No. 0320120066
MSPB No. DC-0432-11-0503-I-1
DECISION
On August 13, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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.
At the time of events giving rise to this appeal, Petitioner worked as a Secretary, GS-0318-07, at the Agency's Office of the General Counsel for Fisheries (GCF) in Washington, DC. Petitioner's First Level Supervisor was the Deputy Assistant General Counsel for Fisheries/Financial Programs (S1 - Caucasian, White). Petitioner's Second Level Supervisor was the Assistant General Counsel for Fisheries (S2 - Caucasian, White).
On December 1, 2010, S1 issued Petitioner a notice of proposed removal for unacceptable performance. The notice cited Petitioner's unacceptable performance under critical element #3 (administrative support: operations) while on a pre-performance improvement plan (Pre-PIP) from April to May 2010 and while on a performance improvement plan (PIP) from August to October 2010. Specifically, the notice stated that Petitioner failed to complete the assigned tasks related to maintaining and organizing the GCF file room area and office supplies.1 On March 23, 2011, S2 issued a decision to remove Petitioner, effective March 26, 2011.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity (October 2009 EEO complaint against S1) when she was removed from her position.
On October 17, 2011, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency did not discriminate against Petitioner as alleged.
In sustaining the charge of unacceptable performance, the MSPB AJ found that Petitioner failed to timely complete all the tasks required of her during the Pre-PIP and the PIP. Although S1 and Petitioner provided conflicting testimony about whether Petitioner completed certain tasks, the MSPB AJ found S1's testimony to be far more credible than Petitioner's testimony. Specifically, the MSPB AJ stated, "[Petitioner] often contradicted herself in her testimony, either through confusion or inattentiveness to her attorney's questions, whereas [S1] testified in a clear, cogent manner throughout and was sure of her facts and timelines." Moreover, the MSPB AJ noted Petitioner's admission to forging the signatures of individuals who were not her supervisors on her fiscal year 2009 performance plan. Although Petitioner contended that she never actually used the falsified document, the MSPB AJ found that her admitted preparation of it "reflects poorly on her integrity and honesty in general."
In finding no race or color discrimination, the MSPB AJ determined that Petitioner failed to present evidence that she was treated differently than similarly situated persons of a different race or color. The MSPB AJ noted Petitioner's contention that a lighter-skinned African-American employee (C1) used to perform the library and file room management duties before S1 assigned them exclusively to Petitioner in 2010. The MSBP AJ, however, declined to infer that S1 discriminated against Petitioner by assigning those duties exclusively to her in 2010, leading to her poor performance. The MSPB AJ found that C1 had a different, higher-graded job, worked under a different performance plan, and had never been counseled for poor performance or placed on a PIP. Moreover, the MSPB AJ found that Petitioner's performance plan had always contained the library and file room management duties.
In finding no reprisal discrimination, the MSPB AJ determined that Petitioner failed to establish that her prior EEO activity played a role in her removal. The MSPB AJ noted Petitioner's contention that S1 was motivated by retaliation rather than poor performance. The MSPB AJ, however, found that pre-October 2009 emails showed that S1 had been attempting to get Petitioner to clean up and organize the file room as early as 2008, well before Petitioner filed her October 2009 EEO complaint. In addition, the MSPB AJ found that the record was clear that Petitioner failed to complete the tasks assigned to her in the Pre-PIP and the PIP. Moreover, the MSPB AJ found that there was no evidence that S1 somehow contrived the numerous examples of Petitioner's performance failures in retaliation for her prior EEO activity.
Petitioner filed a petition for review by the full Board, but the Board denied her petition. Petitioner then filed the instant petition. Petitioner's petition did not contain a statement of the reasons why the decision of the MSPB is alleged to be incorrect, in whole or in part, with regard to the issues of race, color, or reprisal discrimination.
Standard of Review
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).
Disparate Treatment - Race, Color, Reprisal
To prevail in a disparate treatment claim, 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).
Upon review of the record, we agree with the MSPB's finding of no race, color, or reprisal discrimination. Assuming, arguendo, that Petitioner established a prima facie case, we find that the Agency articulated a legitimate, nondiscriminatory reason for her removal; namely, her unacceptable performance during the Pre-PIP and PIP. Moreover, we find that Petitioner failed to prove, by a preponderance of the evidence, that the Agency's explanation was pretextual. We note that Petitioner, in her petition to the Commission, did not articulate any specific reason why we should disregard the MSPB AJ's factual finding, based in part on credibility determinations, that no discriminatory intent existed. We are not persuaded, based on the testimonial and documentary evidence in the record, that Petitioner's race, color, or prior protected EEO activity was the true reason for Petitioner's removal. Petitioner has the overall burden of proving discrimination and we agree with the MSPB that she has not done so here.
Based on 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
__7/24/14________________
Date
1 The notice stated that Petitioner completed the assigned tasks related to maintaining and organizing the GCF library.
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0320120066
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120066