0320170014
02-22-2017
Valencia L.,1 Petitioner, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valencia L.,1
Petitioner,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320170014
MSPB No. CB7121140023V1
DECISION
On November 18, 2016, 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. For the following reasons, the Commission CONCURS with the MSPB's finding that Petitioner's removal was not due to reprisal.
BACKGROUND
Petitioner worked as an Information Technology Specialist, GS-12 at the Agency's facility in Baltimore, Maryland. Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when she was removed from her position for unacceptable performance. Initially, Petitioner filed a grievance regarding her removal. She alleged that her immediate supervisor (S1) discriminated against her. The Agency argued that the removal was due to unacceptable performance. The grievance was appealed to the MSPB.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner did not demonstrate that she was subjected discrimination as alleged. The AJ also found that even if the Petitioner had met her burden of proof, the Agency showed by preponderant evidence that it would have removed her even in the absence of a retaliatory motive.
Petitioner noted the existence of a close temporal proximity between her filing, on November 1, 2011, a Workplace Issues Report (Report) in response to language that she considered unfavorable in her performance appraisal. Petitioner maintained that the filing of the Report lead to a "pattern of antagonism." She explained that, within a few days after she presented the Report to her second-level supervisor, (S2), S1 whom she had accused of discrimination, began taking retaliatory actions against her, which eventually lead to her removal. Petitioner argued that as a result of the Report, S1 changed the Agency's mentorship program and radically altered work assignments to her disadvantage. For example, Petitioner indicated that S1 reduced her assignments to writing because of past misunderstandings, and she assigned Petitioner a new mentor. In April 2012, Petitioner was placed on a performance assistance plan and thereafter an Opportunity to Perform Successfully (OPS) plan.
The AJ acknowledged the temporal connection between Petitioner's filing of the Report and S1's actions, but found that S1's actions had not been motivated by retaliatory animus. The AJ determined that S1's articulated reasons were supported by Petitioner's mentor. S1 maintained that she was newly appointed as the Branch Chief and she made changes to the mentor program because of the availability of new personnel to serve as mentors. S1 indicated that Petitioner was not the only one to be affected by the changes to the mentoring program. S1 also explained that Petitioner's mentor was changed because her mentor had become frustrated with her. The AJ found that temporal proximity alone was insufficient to establish that S1 was motivated by retaliatory animus.
Further, the AJ considered Petitioner's argument that her request to be reassigned was denied. The Agency explained that the request was denied for business reasons, namely, because Petitioner had performance difficulties. S1 explained that Petitioner had difficulty following instructions and would be unable to perform in the position to which the Agency might have reassigned her. It was also noted that the AJ considered the Agency's explanation as why it chose to remove Petitioner rather than to demote her even though there was a GS-11 position available. S1 explained that Petitioner's demonstrated performance deficiencies would have carried over to lower-graded positions, including positions at the GS-9 or GS-10 level.
In finding no discrimination, the AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
Petitioner sought review of the decision by the full Board with regard to the AJ's reprisal analysis. The Board agreed with the AJ's conclusion that Petitioner failed to show that her protected activity was a motivating factor in the decision to remove her, and that the Agency showed by preponderant evidence that it would have removed Petitioner in the absence of any retaliatory motive had she shown that such a motive existed. The Board also found that the AJ relied on S1's extensive testimony regarding Petitioner's performance issues with the support of the testimony of her mentor. Accordingly, the Board adopted the recommended decision.
Petitioner then filed the instant petition. Petitioner argues, among other things, that the AJ did not properly account for the fact that it was recommended by the Executive Officer that she be demoted rather than removed. Further, Petitioner states that it was not acknowledged that she was rated as fully successful at the GS-11 level by three separate supervisors. Petitioner argues that the personnel action at issue here is S1's decision to remove her from federal service, rather than whether she should have been demoted to a lesser-graded position as S1 had been directed to do by the Agency's Executive Officer.
Petitioner also notes that the OPS ended on September 26, 2012, and that S1 proposed her removal on October 12, 2012, just two months and two days after her formal complaint was filed. Petitioner argues that the temporal proximity of her protected EEO activity and the refusal to demote her is persuasive evidence of "suspicious timing."
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).
ANALYSIS AND FINDINGS
Disparate Treatment
We find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of reprisal discrimination when she was removed from her position for unacceptable performance; therefore, we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
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 that no reprisal took place here. Specifically, we find that even if we assume arguendo that Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was removed from her position because of her performance difficulties. We find that the Agency was under no obligation to demote her into a lesser graded position when it was determined that Petitioner was failing in her current position. And while Petitioner argues that it was recommended that she be demoted instead of removed, there is no persuasive evidence that the decision to reject that recommendation and to remove her was due to discriminatory animus. Therefore, we find that other than her conclusory statements Petitioner did not demonstrate that she was subjected to reprisal.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the decision to remove her was based on reprisal.
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 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 defense of unlawful 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
_2/22/17_________________
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.
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