Mildred Butler v. Department of Defense
03990117
January 19, 2000


Mildred Butler,               )
 Petitioner,                  )
                              ) Petition No. 03990117
 v.                           ) MSPB No. DA-0432-97-0323-I-2
                              )
William S. Cohen,             )
Secretary,                    )
Department of Defense,        )
 Agency.                      )
                              )


DECISION

INTRODUCTION

On July 9, 1999,  the petitioner timely filed a petition with the Equal
Employment Opportunity Commission (the Commission) for review of the Final
Order of the Merit Systems Protection Board (MSPB) dated June 10, 1999,
concerning a claim of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq, and the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § 621 et seq.  The petition is governed by the
provisions of the Civil Service Reform Act of 1978 and EEOC Regulations.
29 C.F.R. § 1614.303 et seq.  The MSPB found that the agency did not
engage in discrimination as alleged by the petitioner.  For the reasons
that follow, the Commission concurs with the decision of the MSPB.

ISSUE PRESENTED

The issue on appeal is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on race
(Black), age (54) and reprisal (prior grievance and  EEO complaint)<1>
when it removed her from federal service constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives and is supported by the record as a whole.

BACKGROUND

The petitioner was an Accounting Technician with the Defense Finance
Accounting Service at Fort Hood, Texas.  On June 13, 1996, petitioner
was given a Notice of Unacceptable Performance and placed on a 90-day
Performance Improvement Plan (PIP).  Petitioner was then removed from
Federal service on March 17, 1997, because of unacceptable performance
on critical element one, accounts payable.

Petitioner appealed to the MSPB, arguing that she was removed because of
discrimination based on her race, age and in reprisal for her protected
activity. Petitioner argued that her supervisor (the Supervisor) placed
her on the PIP and became critical of her work after she grieved  her
performance rating.  After a hearing, the MSPB issued an Initial Decision
dated October 14, 1997, dismissing the appeal without prejudice because
the appeal could not be fairly adjudicated within the 120 day time
period for processing appeals.  Petitioner re-filed her appeal and the
MSPB issued an Initial Decision dated December 9, 1998, affirming the
agency's action.  Petitioner filed a petition for review and the MSPB
issued a Final Order dated June 10, 1999, denying the petition.

At the hearing the agency presented evidence that petitioner had an
unacceptable number of exceptions (computer-generated error notices) on
the accounts payable performance element both prior to and during the PIP.
The Supervisor testified that petitioner had fifty one exceptions on
that element between January 1, 1996, and March 31, 1996, and forty
during the PIP.  The Supervisor testified that three to four exceptions
per quarter was the standard for allowable errors for that performance
element.  The agency also presented evidence that the deciding official
never met petitioner and was not aware of her age or race, but was aware
that she filed an EEO complaint.

Petitioner argued that the exceptions could have been committed by
someone other than her because she was on leave for a time due to illness
during the PIP.  The Supervisor testified that the exceptions were noted
for only the days when petitioner was present, and that an individual
identifier code attributed to petitioner was listed with each entry.
The Supervisor presented documents for each exception and described each
error at the hearing.

The MSPB AJ found that petitioner failed to establish a prima facie case
of discrimination based on race and age because she failed to show that
she was treated more harshly than similarly situated employees.  The MSPB
AJ found that, assuming arguendo,  the agency presented legitimate,
non-discriminatory reasons for the removal action.

The MSPB AJ found that petitioner engaged in protected activity when she
filed a grievance and EEO complaint following her May 1995, performance
rating, that the Supervisor and deciding official were aware of that
activity, and that the removal action followed.  However, the MSPB AJ
found that petitioner failed to establish a nexus between her protected
activity and the removal action because the record established that
petitioner was charged with fifty-one exceptions between January 1,
1996, and March 31, 1996, that petitioner was afforded the opportunity
to improve during the PIP, that the Supervisor proposed petitioner's
removal only after her performance failed to improve, and that the
deciding official based his review on the record and on petitioner's
failure to provide a substantive response.

In her petition to the Commission, petitioner argues that the agency
did not prove that petitioner did not meet the critical elements of her
performance standards as alleged.

ANALYSIS AND FINDINGS

The Commission must determine whether the MSPB's decision regarding
the claim 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 any administrative or judicial proceeding involving a claim of
discrimination, it is the burden of the petitioner to initially establish
that there is some substance to his or her claim.  Petitioner's claim
of discrimination is examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
In general, 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; Cooper  v. Federal Reserve Bank of
Richmond, 467 U.S. 867, 875 (1984).

Where the agency articulates a legitimate, nondiscriminatory reason
for its actions, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, that is, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); see also
U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-714 (1983).

The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions, i.e., petitioner's unacceptable
performance, described and documented as fifty-one exceptions during
one three month period, and forty exceptions during a PIP, which far
exceeds the average quarterly acceptance rate.

The burden returns to petitioner to demonstrate that the agency's reason
was a pretext for discrimination, that is, that the agency was more
likely motivated by discriminatory reasons. Burdine, 450 U.S. at 253. The
petitioner offers only her belief that the agency discriminated against
her.  She fails to prove that she was treated differently than similarly
situated employees based on race, age or reprisal, and has not proven
that the agency's articulated reasons were a pretext for discrimination.

Based on the foregoing, the Commission CONCURS with the MSPB's finding
that petitioner's removal was not the result of unlawful discrimination.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)

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 (Z1199)

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 that the Court appoint
an attorney to represent you and that the Court 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 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:


Jan 19, 2000
______________                __________________________________
     DATE                     Carlton M. Hadden, Acting Director
                              Office of Federal Operations


CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing.  I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:


_________________________     __________________________


1 Petitioner filed a grievance following a Highly Successful rating on 
her May 1995, performance evaluation.  Petitioner also filed an EEO 
complaint because a white co-worker's performance rating was increased 
after she filed a grievance.