0320120046
10-17-2012
Barry C. Pretlow, Petitioner, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Barry C. Pretlow,
Petitioner,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320120046
MSPB No. DA-0752-10-0516-B-1
DECISION
On May 9, 2012, 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.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect to Petitioner's allegation of reprisal 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.
BACKGROUND
At the time of events giving rise to this appeal, Petitioner worked as a Sheet Metal Mechanic (Aircraft), WG-3806-10, at the Agency's Tinker Air Force Base in Oklahoma.
On April 1, 2010, Petitioner's First Level Supervisor (S1) issued him a notice of proposed removal based on two charges: (1) failure to follow established leave procedures on February 10-12, 2010; and (2) failure to report for two hours of mandatory overtime from 2:30 p.m. to 4:30 p.m. on February 2, 2010. On June 1, 2010, the Section Chief (SC) issued a decision to remove Petitioner, effective immediately.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity (EEO complaints filed in 2008 and 2009) when he was removed from his position. In addition, Petitioner alleged a claim of reprisal for prior protected activity in violation of 5 U.S.C. �� 2302(b)(8)-(9) (disclosing information to the Agency Inspector General or to the Office of Special Counsel).
On October 1, 2010, after a hearing, an MSPB Administrative Judge (MSPB AJ) issued an initial decision sustaining the two charges, finding no reprisal for prior protected EEO activity, finding no reprisal for prior protected activity in violation of 5 U.S.C. � 2302(b)(8), and upholding the Agency's removal action.
In sustaining the first charge, the MSPB AJ found that Petitioner failed to contact S1 on February 10-12, 2010, as required by the leave procedures. Specifically, the MSPB AJ determined that Petitioner received clear, written notice of the established leave procedures as evidenced by a "Leave Procedures" document he signed in January 2010. In addition, the MSPB AJ cited S1's testimony that the established leave procedures required employees to call their supervisor within two hours of the start of their scheduled shift and inform the supervisor when they expected to be at work. Further, the MSPB AJ cited Petitioner's testimony that he called in on February 10, 2010 but there was no answer, did not call in on February 11, 2010, and did not call in on February 12, 2010.
In sustaining the second charge, the MSPB AJ found that Petitioner failed to report for the mandatory overtime scheduled for February 2, 2010. Specifically, the MSPB AJ cited S1's testimony that: upper management had issued his section an increased production assignment; the assignment required all the employees in his section to work mandatory overtime; he, as the supervisor, was responsible for coordinating and scheduling the work of his subordinate employees, including Petitioner; and Petitioner failed to work the February 2, 2010 mandatory overtime as scheduled. Although Petitioner argued that an "Employee's Work Agreement" document he signed in February 2006 excluded mandatory overtime assignments, the MSPB AJ found that the document, to the contrary, indicated his acceptance to work any assignments given to him by his supervisor.
In finding no reprisal for prior protected EEO activity, the MSPB AJ determined that Petitioner failed to establish that the reason articulated by the Agency for his removal was pretextual. Specifically, the MSPB AJ found that Petitioner provided no probative evidence to contradict S1's testimony that his knowledge of Petitioner's EEO complaints had no impact on the removal or SC's testimony that he knew nothing of Petitioner's EEO complaints. In addition, the MSPB AJ cited S1's testimony that he disciplined Petitioner because he could not allow one employee to not follow the leave procedures or to not work overtime, when all the other employees were expected to do so.
Petitioner filed a petition for review by the full Board. In its April 20, 2011 order, the Board affirmed the MSPB AJ's October 1, 2010 initial decision regarding the charged conduct and the finding of no reprisal for prior protected EEO activity, but remanded the appeal for an adjudication of Petitioner's claim of reprisal for prior protected activity in violation of
5 U.S.C. � 2302(b)(9). On April 5, 2011, after a supplemental hearing, the MSPB AJ issued a second initial decision finding that Petitioner failed to establish that his removal was taken in reprisal for his protected disclosure of information to the Agency Inspector General or to the Office of Special Counsel. Petitioner again filed a petition for review by the full Board, but his petition was denied on April 27, 2012. Petitioner then filed the instant petition.
ARGUMENTS IN PETITION
In his petition, Petitioner asserted that the MSPB erred in finding no discrimination. Specifically, Petitioner argued that there is no evidence he engaged in any misconduct and that, feeling the pressures of his complaints, the Agency fabricated issues of misconduct based on "bogus" policies. In addition, Petitioner argued that the "Leave Procedures" and the "Employee's Work Agreement" documents were "desktop creations" by low-level managers (S1 and SC) who had no authority to dictate Agency policy. Further, Petitioner argued that the policies stated in those Agency documents violated the Master Labor Agreement. Finally, Petitioner argued that there was no evidence that the Commander issued a mandate for overtime.
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 note that the Commission has no authority to review Petitioner's claim of reprisal for prior protected activity in violation of 5 U.S.C. �� 2302(b)(8)-(9) (disclosing information to the Agency Inspector General or to the Office of Special Counsel). In order for the Commission to review a claim of reprisal, Petitioner must allege that he was removed for engaging in protected EEO activity. See 29 C.F.R. � 1614.101(b). Accordingly, we will limit our review to Petitioner's claim of reprisal for prior protected EEO activity (EEO complaints filed in 2008 and 2009).
Upon review of the record, we concur with the MSPB's finding of no reprisal discrimination. Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the basis of reprisal, we agree with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for his removal; namely, Petitioner's failure to follow established leave procedures and failure to report for mandatory overtime.
Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Petitioner to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for reprisal discrimination. Typically, pretext is proved through evidence that the agency's explanation for the adverse action is not believable or that the agency treated the employee differently from similarly situated employees. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II.E.2 (May 20, 1998).
Here, we agree with the MSPB that Petitioner failed to demonstrate that, more likely than not, the Agency's reason was a pretext for reprisal discrimination.
First, Petitioner has not shown that the Agency's reason for his removal is not believable. Regarding the first charge, the record reflects the following: (a) in January 2010, Petitioner signed a "Leave Procedures" document that required employees to call in if they were absent from work and had not requested leave; (b) on February 10, 2010, Petitioner was absent from work, called in, but did not speak to anyone; (c) on February 11, 2010, Petitioner was absent from work but did not call in; and (d) on February 12, 2010, Petitioner was absent from work but did not call in. Regarding the second charge, the record reflects the following: (a) in February 2006, Petitioner signed an "Employee's Work Agreement" document in which he agreed, in pertinent part, "[t]o accept TDY and overtime assignments as the need arises;" (b) S1 scheduled Petitioner for mandatory overtime for February 2, 2010; and (c) on February 2, 2010, Petitioner did not report for mandatory overtime as scheduled. Although Petitioner argued that there was no evidence the Commander ordered mandatory overtime, we give deference to the MSPB AJ's credibility determinations concerning the testimony of S1 about the mandatory overtime.1 In addition, we note that the record contains an overtime roster showing that other employees in Petitioner's unit were scheduled for two hours of mandatory overtime on February 2, 2010.
Second, Petitioner has not shown that the Agency treated him differently from similarly situated employees without prior EEO Activity. In his petition, Petitioner questioned the validity of the policies enunciated in the "Leave Procedures" and "Employee's Work Agreement" documents. We note that, even assuming that those documents violated the Master Labor Agreement, this, by itself, is not sufficient for establishing illegal retaliation. We emphasize that Petitioner failed to prove that employees in his section, who did not have prior EEO activity, were not subject to the same leave procedures and to the same mandatory overtime assignments.
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 discrimination. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____10/17/12______________
Date
1 An Administrative Judge's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, at � VI.B.2 (Nov. 9, 1999).
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0320120046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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