0320140079
05-07-2015
Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320140079
MSPB No. DA0432130237I1
DECISION
On July 14, 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 his 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.
BACKGROUND
Petitioner worked as a Information Technology Specialist, GS-2210-12, at the Agency's Office of the Chief Financial Officer's Information and Technology Services Division in New Orleans, Louisiana. Petitioner was placed in the position as the result of a settlement agreement. Petitioner alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when he was removed from his position, effective February 10, 2013.
A hearing was held and thereafter an MSPB Administrative Judge (MSPB AJ) issued an initial decision affirming the Agency's removal of Petitioner. The MSPB AJ found that Petitioner's supervisor (S1) advised him on October 18, 2012 that he was failing to meet three critical elements of his position and placed him on a 60 day Performance Improvement Plan (PIP). Specifically, S1 found that Petitioner was failing to meet the following critical elements: 1) mission accomplishment; 2) security and continuity of operations; and 3) communications. When Petitioner failed to successfully complete the PIP, S1 proposed that he be removed from his position. The MSPB AJ found that the Agency's performance approval system was approved by OPM and the Agency's standards were valid. The MSPB AJ further found that substantial evidence showed that Petitioner was informed of his deficiencies, and failed to improve upon them. The MSPB AJ further found that substantial evidence supported the Agency's determination that Petitioner failed to successfully meet the critical elements in 1 and 3.
The MSPB AJ further found that Petitioner failed to show that the Agency retaliated against him for prior EEO and MSPB activity. The MSPB AJ found that S1 and other management officials involved in the decision to remove Petitioner knew of his prior protected activity. However, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely Petitioner's unacceptable performance. The MSPB AJ found that the record was devoid of any evidence that S1 and the other management officials were motivated by retaliatory animus. The MSPB AJ noted that the only evidence put forth by Petitioner was that he believed the removal to have been retaliatory. Petitioner sought review by the full Board.
On August 7, 2014, the Board issued a final order. In it, the Board denied the petition for review and affirmed the initial decision. With regard to Petitioner's reprisal claim, the Board found that Petitioner failed to put forth any evidence that the Agency's removal was a pretext for retaliation. Petitioner then filed the instant petition.
On appeal, Petitioner appears to argue that the Agency failed to keep records of what was said at the PIP meetings he attended and that the Agency only presented the notes maintained by S1. Petitioner also argues that the PIP was not valid because it was not submitted to OPM and the Agency failed to allow "unbiased documentation" of what occurred during the PIP. Petitioner argues that the MSPB AJ failed to consider evidence regarding his allegations that the Agency violated the terms of a settlement agreement when he was placed into the position at issue in this case and that he was not provided training as required in the settlement agreement.
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 Petitioner's contention that the Agency violated the terms of his settlement agreement is currently pending with the Commission, and has been designated EEOC Appeal No. 0120142635. As such, like the MSPB AJ, we will decline to entertain any evidence or argument regarding the settlement agreement.
To prevail in a disparate treatment claim such as this, 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 he 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). At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming, arguendo, Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. According to the Agency, Petitioner failed to successfully perform at least two critical elements and failed to improve upon them while on a PIP.1 We further find that Petitioner failed to meet his burden to show that the Agency's proffered reasons were a pretext for discrimination. Although Petitioner asserted that the Agency failed to keep unbiased documentation of what occurred in the PIP meetings, he has failed to show how he was harmed by the Agency's failure to do so or what information he believes should have been maintained by the Agency. As such, we find that Petitioner failed to offer any persuasive evidence that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory reasons based on his prior EEO activity.
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
_5/7/15_________________
Date
1 They were Critical Elements 1 and 3.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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