0320160040
07-14-2016
Tim H.,1 Petitioner, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tim H.,1
Petitioner,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Petition No. 0320160040
MSPB No. SF-0752-14-0285-I-1
DECISION
On April 21, 2016, 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 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
ISSUE PRESENTED
The issue presented is whether the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish his affirmative defenses of unlawful national origin (Hispanic), sex (male), or age (49) discrimination in connection with his furlough.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Supervisory Chemist,
GS-1320-13, at the Agency's U.S. Army Corps of Engineers, South Pacific Division, Sacramento District, in California. Petitioner worked in the Engineering Division, Environmental Engineering Branch, and his first-level supervisor was the Supervisory Environmental Engineer (S1 - national origin unknown, male, age unknown). Petitioner's SF-50 contained a military Unit Identification Code (UIC).
On May 14, 2013, the Secretary of Defense (SECDEF) issued a memorandum directing the defense agencies to prepare to furlough most Department of Defense (DoD) civilians for up to
11 days, from July 8, 2013 to September 30, 2013. Specifically, the SECDEF stated that the furlough was necessitated by the budgetary challenges facing the DoD for the remainder of fiscal year 2013. In addition, the SECDEF stated that any employees who were not paid directly by accounts included in the DoD-military (051 subfunction) budget were exempted from furlough (Exception 9).
On May 28, 2013, the Agency issued a memorandum guiding the implementation of the furlough. Specifically, the Agency stated that it would implement Exception 9 using the UIC as the primary indicator of funding source for its employees. If an employee's SF-50 contained a civil works UIC, then the employee would be considered funded by a non-051 subfunction account and would be exempted from furlough. If an employee's SF-50 contained a military UIC, then the employee would be considered funded by a 051 subfunction account and would be subject to furlough.
Prior to the furlough, the Agency created a process for changing an employee's UIC from military to civil works. If a District determined that an employee with a military UIC was
100 percent funded by a non-051 subfunction account, then the District could request approval from Headquarters to change the employee to a civil works UIC. The Sacramento District requested and received approval from Headquarters to change the UICs of 16 employees from military to civil works.
On June 3, 2013, S1 issued Petitioner a notice of proposed furlough. On June 24, 2013, the District Commander (DC - national origin unknown, male, age unknown) issued Petitioner a notice of decision to furlough.
On July 9, 2013, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), and age (49) when it furloughed him. The MSPB docketed Petitioner's appeal as MSPB No.
SF-0752-13-0712-I-1. Subsequently, the MSPB consolidated Petitioner's appeal with the appeals from 29 other employees in the South Pacific Division challenging their furloughs.
The MSPB docketed the consolidated appeal as MSPB No. SF-0752-14-0285-I-1.
On June 25-26, 2014, an MSPB Administrative Judge (AJ) held a video-conferenced hearing2 on the consolidated appeal. At the hearing, DC testified but Petitioner and S1 did not.
On November 5, 2014, the MSPB AJ issued an Order regarding Petitioner's appeal. Specifically, the MSPB AJ ordered Petitioner to clarify his discrimination claims and submit evidence in support of those claims. On November 12, 2014, Petitioner submitted a response to the AJ's order.
On November 21, 2014, the MSPB AJ issued an initial decision on the consolidated appeal. The MSPB AJ reversed the Agency's furlough action,3 but found that Petitioner did not establish his affirmative defenses of unlawful discrimination on the bases of national origin, sex, or age.
Regarding the furlough, the MSPB AJ found that the Agency did not fairly and consistently apply the furlough when it decided to use an employee's UIC as the basis for Exception 9. Specifically, the MSPB AJ found that an employee's UIC did not accurately reflect the employee's funding source or the work the employee performed.
Regarding disparate treatment, the MSPB AJ found that, regardless of the problems with the Agency's use of the UIC, the Agency did not change UICs or furlough employees based on national origin, sex, or age. The MSPB AJ noted Petitioner's identification of a Sacramento District supervisor (C1 - national origin unknown, male, age unknown) whose UIC was changed from military to civil works. The MSPB AJ, however, found that Petitioner and C1 were not similarly situated because Petitioner worked as a Supervisory Chemist, GS-1320-13, in the Environmental Engineering Branch whereas C1 worked as a Supervisory Civil Engineer,
GS-0810-14, in the Engineering Division. In addition, the MSPB AJ found that it was not apparent whether C1 fell outside of Petitioner's protected bases of national origin and age. Further, the MSPB AJ found that the documentary evidence in the record showed that the Sacramento District employees whose UICs were changed from military to civil works included male employees and at least one employee with a Hispanic last name. Moreover, the MSPB AJ credited the hearing testimony of DC that age had nothing to do with how UICs were assigned or the furlough process.
Regarding disparate impact, the MSPB AJ found that Petitioner did not present sufficient statistical evidence to prove that the Agency's use of the UIC fell more harshly on one group than another. The MSPB AJ noted Petitioner's assertion that the use of the UIC was a facially neutral practice that resulted in the furlough of 100 percent of the Hispanic male supervisors in the Sacramento District. The MSPB AJ, however, found that the documentary evidence in the record showed that most employees with a military UIC in the Sacramento District were not Hispanic (if one could assume that a last name was indicative of Hispanic national origin) and were furloughed. In addition, the MSPB AJ found that the documentary evidence in the record showed that the majority of the employees in the Sacramento District were male, and that even if one could assume that more male employees than female employees were furloughed, this was not evidence that the Agency's assignment of UICs created a disparate impact when the Agency furloughed employees.
The Agency filed a petition for review with the Board. On April 14, 2016, because the two Board members could not agree on the disposition of the petition for review, the Board issued an order stating that the initial decision would become the final decision of the MSPB.
Petitioner then filed the instant petition. In his petition, Petitioner states that he was requesting further review of his discrimination claims and that he "did not receive a response" to his November 12, 2014, response to the MSPB AJ's November 5, 2014, Order.
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).
As an initial matter, we address Petitioner's statement that he "did not receive a response" to his November 12, 2014, response to the MSPB AJ's November 5, 2014, Order. It is unclear what "response" Petitioner expected to receive. However, it is clear from the MSPB AJ's November 21, 2014, initial decision that the MSPB AJ considered Petitioner's response in finding no discrimination.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A petitioner carries the initial burden of establishing 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 802 n.13. 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). Once the agency has met its burden, the petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., 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 disparate treatment on the bases of national origin, sex, or age. Specifically, we agree with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, it furloughed Petitioner because, based on his SF-50 containing a military UIC, it considered him to be funded by a 051 subfunction account. Moreover, we agree with the MSPB that Petitioner did not prove, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination. We note that Petitioner did not specifically challenge any part of the MSPB's decision in his petition to the Commission; Petitioner's petition did not contain a statement of the reasons why he believes the decision of the MSPB is incorrect, in whole or in part, with regard to the issue of discrimination. We are not persuaded, based on the testimonial and documentary evidence in the record, that Petitioner's national origin, sex, or age was part of the Agency's motivation for not changing his UIC or for furloughing him.
Disparate Impact
To establish a prima facie case of disparate impact, a petitioner must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (the petitioner must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion"). Specifically, a petitioner must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on the petitioner to show that "the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).
Upon review of the record, we agree with the MSPB's finding of no disparate impact on the bases of national origin, sex, or age. Specifically, we agree with the MSPB that Petitioner did not present sufficient statistical evidence to establish a statistical disparity that is linked to the Agency's use of the UIC in implementing the furlough. We again note that Petitioner did not specifically challenge any part of the MSPB's decision in his petition to the Commission. Therefore, Petitioner's did not explain why he thinks the MSPB erred in finding no disparate impact in this case. Accordingly, we are not persuaded, based on the documentary evidence in the record, that the Agency's use of the UIC in implementing the furlough disproportionately impacted employees who were Hispanic, male, or 40 years of age and older.
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 unlawful national origin, sex, or age discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defenses of unlawful national origin, sex, or age 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 (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 Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__7/14/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 In Allen v. U.S. Postal Serv., EEOC Appeal No. 01A51259 (Aug. 21, 2006), the Commission approved video-conferencing as an acceptable alternative to an in-person hearing. The record does not show that, either during the hearing or thereafter, the parties raised any objection to the video-conferencing.
3 The MSPB AJ ordered the Agency to cancel the furloughs and to pay back pay.
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