0320140017
08-10-2015
Petitioner, v. Sally Jewell, Secretary, Department of the Interior, Agency.
Petitioner,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Petition No. 0320140017
MSPB No. CB-7121-12-0020-V-1
DECISION
On November 19, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Technical Information Assistant, GS-7 at the Agency's Science Information and Library Service facility in Washington, D.C. Petitioner alleged that the Agency discriminated against her on the bases of race (African-American), national origin (Jamaican), disability (visual impairment), age (66), harassment (non-sexual) and reprisal when she was removed from federal service, effective August 16, 2010, after it was determined that she had failed to demonstrate minimally successful performance during a 90-day performance improvement plan (PIP).
Following the notice of removal, Petitioner contacted an EEO Counselor on December 4, 2009, and the union also filed a grievance regarding her removal. On March 19, 2010, Petitioner filed a formal EEO complaint of discrimination which alleged that she was discriminated against on the above bases when: (1) between September and November 2009, a portion of her duties as a "Technical Information Assistant" were taken away for her; (2) on October 28, 2009, she was issued an Unsatisfactory Performance Rating, and as a result, on December 7, 2009, she was issued a PIP; (3) after filing her formal complaint on May 19, 2010, she was issued a Proposed Removal; (5) on December 4 and 8, 2009, she discovered that her work was being sabotaged; and (6) effective August 16, 2010, she was removed from federal service.
The grievance proceeded to arbitration. Following a hearing by the arbitrator, the arbitrator issued a final decision denying the grievance and affirming the Agency's removal action. The arbitrator found that the Petitioner had made a binding election to contest her removal through the EEO process instead of the negotiated grievance process and that he therefore lacked jurisdiction to adjudicate the grievance. Notwithstanding, this ruling, the arbitrator stated that, "since the possibility exists that [this] conclusion could be set aside in another forum, I believe it appropriate to address the merits of the grievance as well, particularly since the merits were the subject of a full hearing and subsequent briefing by the parties." On the merits, the arbitrator found that the Agency's removal was supported by substantial evidence, that the Petitioner did not establish her claims that the Agency committed harmful procedural error, that the removal action was not in accordance with law, that she was subjected to a hostile work environment, and that the Agency failed to accommodate her vision difficulties.
Thereafter, the Petitioner sought review by the full Board. The Board found that the arbitrator's ruling that the Petitioner had elected the EEO procedure instead of the grievance procedure did not deprive her of the ability to fully litigate her appeal, including her discrimination claims. The Board indicated that even if it were to agree that the arbitrator erred in ruling that the Petitioner elected the EEO complaint process rather than the negotiated grievance procedure, Petitioner was not harmed by that ruling. The Board indicated that it did not need to determine the extent to which Petitioner was improperly precluded by the arbitrator from fully litigating her claims of discrimination because she was not precluded from fully litigating those claims before the Board.
According to the Board, Petitioner was free to request Board review of her claims of unlawful discrimination even if those claims had not been raised or adjudicated in the arbitration proceeding. Despite being advised by the Clerk that a request for review of an arbitration decision must include a statement of the grounds on which review is requested, and that she was permitted to submit evidence and argument that had not been previously submitted, the Board found that Petitioner did not submit evidence and arguments in support of her contention that the Agency's removal should be reversed because of unlawful discrimination.
The Board, like the Agency, found that Petitioner "chose not to present any evidence and therefore has failed to take advantage of this opportunity," consequently, all of her discrimination claims were dismissed and no remand ordered. According to the Board, Petitioner's failure to submit or cite evidence or argument supporting her contention of unlawful discrimination with her request for Board review was a proper reason for affirming the arbitrator's decision absent other legal error. In sum, the Board found that Petitioner had not shown that she was deprived of an opportunity to litigate her discrimination claims, and she made no showing that the arbitrator erred in interpreting or applying a civil service law, rule, or regulation in affirming the Petitioner's removal for unacceptable performance.
Petitioner then filed the instant petition. She contends that she has been denied due process by both the EEOC and the Arbitrator's finding that they did not have jurisdiction of her case. She argues that this has resulted in her issues of unlawful discrimination having not been fully addressed with regard to her removal. Petitioner maintains that her removal was issued because of alleged poor job performance based on a performance rating made outside of the Agency's OPM approved performance-management system. Petitioner also maintains that the Board failed to realize that the applicable collective-bargaining agreement required that each employee have a valid and correct position description at all times. Petitioner maintains that it was a violation of the contract for her to be without a position description for two years. Petitioner contends that the Board unreasonably held that it was her burden to show that she was harmed by an unfair hearing and by other deprivation of procedural due process.
Petitioner also maintains that while she had a limited opportunity for a hearing before the arbitrator, she did not have a fair opportunity. She explains that at arbitration, she was unfairly constrained by the Agency and its counsel and the arbitrator. And, the refusal of the Agency to provide travel expenses, the disposition of the arbitrator not to hear her affirmative defense of discrimination, the late assertion of the Agency's claim and Petitioner's representative's decision under duress to abandon presentation of her affirmative defense of discrimination on the reasonable assumption that she would retain the right to pursue a remedy before the EEOC, all support her belief that she was not afforded a fair opportunity to present her claims. She asserts she could not have reasonably foreseen the Agency counsel's improper and unethical conduct leading to the deprivation of Petitioner's right of action.
Petitioner requests that she be reinstated to her position and be awarded back pay with interest on the grounds that the Agency's negligence and misconduct have caused delays and other harm that prevented a fair hearing of her removal case. Petitioner also requests reimbursement for AFGE Local's expenses for the arbitration, the arbitrator's fee and union postage costs. She asks that she be granted the option to pursue a new grievance seeking compensation for the consequential damages and personal costs, such as travel expenses, real-estate losses, and a new arbitrator. Further, she asks that she be allowed reasonable time to choose whether to litigate her remaining, unlitigated claims of unlawful discrimination under statutory procedures or under the negotiated grievance procedure and that the Washington Regional Office of the MSPB be made available for enforcement of these awards. In the alternative, Petitioner asks that she be allowed to pursue her original EEO complaint excluding removal claims in the EEOC with liberal leave to amend. She also requests that a pro-bono attorney be provided to her.
In response, the Agency asserts that the Commission should concur with the MSPB's dismissal of Petitioner's discrimination claim. The Agency maintains that the Counsel for the Agency repeatedly warned Petitioner and her representatives before and during the arbitration that Petitioner had to elect one and only one forum to advance her claims. However, Petitioner persisted in trying to split her claims, and chose to present only limited evidence of discrimination during the arbitration, and elected to present zero evidence of discrimination to the MSPB. The Agency notes that on January 16, 2012, the Arbitrator ruled that the EEOC properly had jurisdiction of all of Petitioner's claims but on the merits alternatively dismissed all of Petitioner's claims, including her discrimination claims.
The Agency further notes that on July 25, 2012, the EEOC AJ dismissed Petitioner's discrimination claims because she had elected to advance them through the grievance process. On September 27, 2012, the Agency issued a Final Order adopting the EEOC AJ's ruling. Petitioner never appealed the Final Order. Finally, on October 24, 2013, the MSPB sustained the arbitrator's alternative findings and conclusions of law on the merits and dismissed all of Petitioner's arguments and claims regarding discrimination.
The Agency argues that Petitioner had the opportunity to present her evidence regarding discrimination to the MSPB for review but failed to introduce any evidence. Petitioner admits that she did not take advantage of this opportunity. Moreover, the Agency maintains that Petitioner and her witnesses at the arbitration testified regarding Petitioner's claims of discrimination and the arbitrator separately dismissed each discrimination claim.
The Agency also asserts that the Commission should not consider Petitioner's arguments on non-discrimination issues because Petitioner cannot collaterally challenge the EEOC AJ's dismissal of her complaint. Again the Agency notes that the Petitioner never appealed that ruling and is therefore barred from collaterally attacking it.
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). In the instant case, the MSPB determined that Petitioner had the opportunity to fully raise her discrimination issues in at least two forums but failed to do so, i.e., before the arbitrator and subsequently before MSPB itself. According to the MSPB, Petitioner failed to submit or cite evidence or argument supporting her contention of unlawful discrimination with her request for Board review; consequently, the MSPB's final order does not contain a determination of whether or not Petitioner was discriminated against with regard to her removal. Because Petitioner's discrimination claims were dismissed by the MSPB, we have no jurisdiction to consider the matter here. As noted above, "the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination," which was not done in this case.1
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to DENY consideration of this matter.
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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_8/10/15_________________
Date
1 We further note that the other matters raised by Petitioner are not properly before the Commission. Consequently, we will not address her claims on non-discrimination issues or the rulings of the EEOC AJ.
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0320140017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140017