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.