The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNETTE DAVIS, DOCKET NUMBER
Appellant, AT-0752-09-0860-E-1
v.
DEPARTMENT OF THE INTERIOR, DATE: August 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Adam J. Conti, Esquire, Atlanta, Georgia, for the appellant.
Isaiah D. Delemar, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The Equal Employment Opportunity Commission (EEOC) has referred this
appeal of the appellant’s removal to the Board for further consideration pursuant
to 5 U.S.C. § 7702(b)(5)(B) because the EEOC’s decision on the appellant’s
affirmative defense of retaliation for protected equal employment opportunity
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
(EEO) activity differs from the Board’s decision in this case. For the following
reasons, we CONCUR IN and ADOPT the EEOC’s decision, and FORWARD the
appeal to the regional office for adjudication of the appellant’s claim for
compensatory damages. The agency’s removal action is NOT SUSTAINED.
BACKGROUND
¶2 The appellant was removed from her Fiscal Officer position, effective July
19, 2009, based on three specifications of failure to comply with proper
directives. In effecting the action, the agency considered the appellant’s past
disciplinary record for failure to comply with proper orders, including a 10-day
suspension and a 30-day suspension. On appeal, the appellant challenged the
action and alleged that it was based on race (African-American) and sex
discrimination and was taken in retaliation for her having filed an EEO
complaint. Her request for relief included, inter alia, a claim for compensatory
damages. Initial Appeal File, Tab 1 at 3. Following a hearing, the administrative
judge issued an initial decision in which he found that the agency had proven all
three specifications and therefore the charge of failure to comply with proper
directives. Initial Decision (ID) at 5-8. The administrative judge also found that
the appellant did not prove her affirmative defense of retaliation for protected
EEO activity. 2 ID at 8-12. Specifically he found that, because there had been a
hearing and the record was complete, the ultimate question was whether, upon
weighing all of the evidence, the appellant met her overall burden of proving
illegal retaliation. ID at 8-9. The administrative judge then found that, because
the appellant relied upon circumstantial evidence to prove her claim, she was
required to provide evidence showing a “convincing mosaic” of retaliation against
2
During adjudication, the administrative judge struck the appellant’s discrimination
claims on the basis that she had not alleged facts which, if proven, would establish a
prima facie case of either claim.
3
her, but failed to do so. ID at 9-12. Finding the penalty reasonable, the
administrative judge affirmed the agency’s action. ID at 13.
¶3 On petition for review, the full Board affirmed the administrative judge’s
findings regarding the three specifications and the charge. Davis v. Department
of the Interior, 114 M.S.P.R. 527, ¶ 5 (2010). The Board discerned no error in,
and affirmed, the administrative judge’s finding that the appellant failed to
establish her claim of retaliation. The Board found, however, that the
administrative judge erred in handling the appellant’s affirmative defenses of race
and sex discrimination, id., and it remanded the case to allow her to submit
evidence and argument concerning those claims and to request a hearing, and for
the administrative judge to issue a supplemental initial decision on those claims.
Id., ¶ 14. On remand, the administrative judge accepted into the record a copy of
a decision by an EEOC administrative judge on the appellant’s complaint, finding
that the agency had subjected her to a hostile work environment because of her
race and sex, and in retaliation for her prior EEO activity, from late September
2006 to the end of 2007. 3 Davis v. Department of the Interior, MSPB Docket No.
AT-0752-09-0860-B-1, Supplemental Initial Decision (SID) at 2 (July 11, 2011).
However, the administrative judge attached little significance to the EEOC
administrative judge’s findings, reasoning that the removal was unrelated and too
far removed from the 2006-2007 matters considered by the EEOC administrative
judge. SID at 9-10. The Board’s administrative judge found that the appellant
failed to prove that the agency’s decision to remove her was a pretext for
discrimination on the basis of race or sex, SID at 5-11, and that removal remained
3
The agency did not appeal the EEOC administrative judge’s decision to the Office of
Federal Operations. As part of his award, the EEOC administrative judge ordered the
agency to remove the 10-day suspension from the appellant’s personnel records. SID
at 3 n.1.
4
a reasonable penalty, 4 SID at 11-12. The supplemental initial decision became
the Board’s final decision on August 15, 2011, when neither party filed a petition
for review.
¶4 The appellant then filed a petition for review with the EEOC. See 5 U.S.C.
§ 7702(b)(1); 5 C.F.R. § 1201.157. She challenged the administrative judge’s
formulation of the “convincing mosaic” evidentiary standard for establishing
retaliation, arguing that it is greater than the “preponderance of the evidence”
burden required to prove Title VII claims, and she argued that the EEOC should
reject the administrative judge’s formulation of the standard.
¶5 In its decision, the EEOC first clarified its view about the role of the
“convincing mosaic” in federal sector retaliation cases. Davis v. Department of
the Interior, EEOC Petition No. 0320110050 at 11-12 (July 16, 2014). The
EEOC explained that the “convincing mosaic” is “a useful way to describe how
several facts may add up to sufficient evidence to discredit an employer’s
explanation and demonstrate a causal connection between the prior protected
activity and the challenged adverse action.” Id. at 12. The EEOC stated that it
did not intend to promulgate a new standard whereby circumstantial evidence in a
retaliation case must have a mosaic-like character, or to require appellants to
meet a more demanding evidentiary standard, and that it also did not intend to
state a preference for one evidentiary framework over another, but, rather to
indicate that, under certain evidentiary scenarios, the “convincing mosaic” can
serve as a useful option for establishing the causal connection in retaliation cases.
The EEOC found that the Board’s administrative judge erred in insisting that an
appellant “must” provide evidence showing a “convincing mosaic” of retaliation
in order to prove retaliation using circumstantial evidence. Id.
4
The administrative judge noted that, after the EEOC administrative judge invalidated
the 10-day suspension, the agency issued a new penalty determination, but concluded
that removal remained appropriate. SID at 11.
5
¶6 The EEOC then reviewed the evidentiary record and found that the agency’s
articulated reason for removing the appellant was not legitimate. Id. at 13. The
EEOC found that the agency explicitly relied on the supervisor’s preceding
harassing conduct of the appellant, including past disciplinary actions, to justify
removing her, but that at least one past action, a 10-day suspension, was
invalidated by an EEOC administrative judge as discriminatory, and that
supervisors may not use their past discriminatory actions as a basis for
“subjecting their victims to new adverse actions.” Id. The EEOC then found
significant evidence that the appellant’s first-line supervisor harassed her
beginning in 2006 and 2007 and continuing until the date of her removal. The
harassment included evidence that the supervisor belittled the appellant during
meetings, told her numerous times to find a new job, refused her requests to be
downgraded in position in an effort to escape the harassment, excessively and
unjustifiably disciplined her for failing to follow trivial and erratic “directives,”
and twice tried to use discriminatory disciplinary actions as a means to remove
her. Id. at 14. Further, the EEOC found no evidence that the supervisor
improved her conduct towards the appellant over the years or that the agency
undertook any corrective action or other remedial measures to stop the
supervisor’s harassment of the appellant and ensure that it would not recur. Id.
For these reasons, the EEOC concluded that the record evidence clearly
established a nexus between the supervisor’s preceding harassing conduct and her
subsequent removal of the appellant. Id. at 13-15.
¶7 The EEOC thus differed with the Board’s final decision, concluding that it
constitutes an incorrect interpretation of the laws, rules, regulations, and policies
governing the issue of retaliation for protected activity, and is not supported by
the evidence in the record as a whole. Id. at 15.
6
ANALYSIS
¶8 In Ignacio v. U.S. Postal Service, 30 M.S.P.R. 471, 486 (Spec. Pan. 1986),
the Special Panel held that the Board is permitted to disagree with the EEOC only
as to misinterpretation of civil service law. Thus, the Board may not force
Special Panel review of an EEOC decision merely because the Board disagrees on
discrimination law unless the EEOC decision depends on civil service law for its
support or is so unreasonable that it amounts to a violation of civil service law.
Id.; see Parks v. U.S. Postal Service, 110 M.S.P.R. 64, ¶ 6 (2008), aff’d as
modified by 113 M.S.P.R. 60 (2010); Randel v. Department of the Navy,
72 M.S.P.R. 288, 290 (1996); 5 C.F.R. § 1201.162(a).
¶9 Here, the EEOC decision rests upon an interpretation of discrimination law,
specifically, a clarification of the law pertaining to retaliation for protected EEO
activity and the application of that law to the facts of this case. Further, the
EEOC decision is not so unreasonable that it amounts to a violation of civil
service law. Thus, under Ignacio, the Board lacks the authority to disagree with
the EEOC’s decision. We therefore CONCUR IN and ADOPT the decision
finding that the agency retaliated against the appellant based on her prior EEO
activity.
ORDER
¶10 Accordingly, we FORWARD this appeal to the regional office for
adjudication of the appellant’s claim for compensatory damages. The
administrative judge shall permit the appellant to present evidence and argument
in support of her claim and shall issue a decision resolving the claims. See
Edwards v. Department of Transportation, 112 M.S.P.R. 82, ¶ 21 (2009).
¶11 We ORDER the agency to carry out the EEOC’s decision by canceling the
appellant’s removal and restoring her, effective July 18, 2009. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
7
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. See, e.g., 42 U.S.C. § 2000e-5(g)(1); Edwards, 112 M.S.P.R. 82, ¶ 17.
We ORDER the appellant to cooperate in good faith in the agency’s efforts to
calculate the amount of back pay, interest, and benefits due, and to provide all
necessary information the agency requests to help it carry out the Board’s Order.
If there is a dispute about the amount of back pay, interest due, and/or other
benefits, we ORDER the agency to pay the appellant the undisputed amount no
later than 60 calendar days after the date of this decision.
¶13 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶14 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
8
¶16 This is the final decision of the Merit Systems Protection Board concurring
in and adopting the EEOC’s decision. Title 5 of the United States Code, section
7703(a)(1) (5 U.S.C. § 7703(a)(1)). It is not a final decision on the issue of the
appellant’s entitlement to compensatory damages because that issue has been
forwarded to the regional office for adjudication.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision in your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
9
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
10
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.