0320150049
03-08-2016
Bart M.,1 Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bart M.,1
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320150049
MSPB No. SF0752140752I1
DECISION
On July 23, 2015, 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 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly determined that the Agency did not discriminate against Petitioner based on race and age when it removed him.
BACKGROUND
Petitioner worked as a Heavy Mobile Equipment Repairer at the Agency's Marine Depot Maintenance Command, Marine Corps Logistics Command facility in Barstow, California. Petitioner alleged that the Agency discriminated against him on the bases of race (African-American) and age (52) when it removed him on August 9, 2014.
On April 21, 2014, Petitioner was in an onsite cafeteria when he approached another employee (E1). Petitioner allegedly pushed E1 with his chest and arms. When E1 stated that there was enough room to Petitioner to get past him, Petitioner yelled at E1 to get out of his way.
Later that day, Petitioner asked for permission to go to the "security trailer" for a police matter. The Branch Head inquired into Petitioner's whereabouts because the police were responding to the alleged assault in the cafeteria. When Petitioner's supervisor went to the security trailer to look for Petitioner, he was not there. All the police patrols and gate guards were directed to be on the lookout for Petitioner. He was detained while returning to the premises at the main gate and was noticed to have blood-shot eyes and he consented to a search of his person. Petitioner was found with a metal smoking pipe, a clear glass pipe, a white bag that was suspected to be methamphetamines and a clear bag containing a green, leafy substance. He admitted to the detaining officer that he had used "weed" and "speed" prior to leaving for work that day. Due to a reasonable suspicion, Petitioner was required to submit to a drug test, which tested positive for amphetamines, methamphetamines and marijuana (THC). The contents that Petitioner surrendered were confirmed as methamphetamines (1-2 grams) and marijuana.
On June 13, 2014, the Agency proposed Petitioner's removal for (1) Offensive Physical Contact; (2) Leaving the Workplace Without Permission; (3) Possession of a Controlled Substance and Drug Paraphernalia Aboard a Military Installation and; (4) Testing Positive for Amphetamines, Methamphetamines and Marijuana (THC) While in a Duty Status. Petitioner submitted a written reply to his proposed removal on July 8, 2014. Petitioner denied physical contact with E1 and stated that his absence was a miscommunication between himself and his supervisors. Petitioner also presented an oral reply on July 16, 2014, where he took full responsibility for his actions and requested a Last Chance Agreement (LCA). In support of his request for an LCA, he provided copies of previous LCAs given to other employees.
On August 4, 2014, the deciding official (DO) issued the Decision on the Proposed Removal, sustaining the removal, effective August 8, 2014. DO found that there was insufficient evidence on the first two charges in the proposed removal but found that the third and fourth charges were substantiated. DO provided a copy of his Douglas factors analysis and noted that the charges were extremely serious since being under the influence of drugs raises the possibility of Petitioner making mistakes or accidents occurring while he is working. In regards to the past LCAs, DO considered them but found that those were entered into by his predecessor. DO also found that Petitioner was not similarly situated as those who had entered into LCAs because Petitioner worked in a different unit, held a different position and had a different supervisor.
Petitioner appealed his removal to the MSPB on August 18, 2014. Petitioner alleged that he was discriminated against because he was not given an LCA, unlike other former employees with the same charges. He also alleged that he was discriminated against because the Agency delayed in referring him to Civilian Employee Assistance Program (CEAP) since other employees were referred immediately after their illegal drug use was detected.2
The hearing was held on October 30, 2014, and the MSPB Administrative Judge (AJ) issued an Initial Decision on March 11, 2015. In the decision, the AJ affirmed the removal and found that Petitioner had not shown that the Agency discriminated against him based on race and age. Petitioner named four comparators who he claimed were treated more favorably than he was: D1, (race unknown, under 40), a Hazardous Waste Handler in the environmental department, was issued a 14-day suspension and an LCA for possession of marijuana and drug paraphernalia aboard a government facility and for testing positive for marijuana (THC), amphetamines and methamphetamines while in a duty status; D2 (race unknown, under 40), a mechanic who was issued a 14-day suspension and an LCA after being found with methamphetamines; D3 (race and age unknown), a painter charged with possession and testing positive for marijuana and;3 D4 (race and age unknown), a mechanic charged with possession of controlled substances and testing positive for methamphetamines and marijuana. Petitioner stated that D4 was initially referred to CEAP in 2009 but that he was removed in 2010, when he relapsed into drug use.
The AJ held that Petitioner had not demonstrated that he was treated disparately because he did not show that any of the named comparators were similarly situated. The AJ found that Petitioner did not present evidence to establish the race and/or age of D2, D3 and D4. The AJ found that D2 differed from Petitioner because D2 was under a different chain of command with a different deciding official. Additionally, the AJ distinguished D1 from Petitioner because he held a different position, had a different supervisor and a different deciding official. The AJ also distinguished D3 and D4 because they had different positions, different supervisors and different charges. As such, the AJ found that all the named comparators were not similarly situated to Petitioner.
Petitioner argued that the Agency acted harshly in removing him in light of his previously clean employment record of nine years, which shows that he was discriminated against based on race. However, the AJ held that DO acted within the bounds of reasonableness given the seriousness of the offense and the decision does not reflect any racial animus.
In regards to Petitioner's claim that he was discriminated against when the Agency delayed in referring him to CEAP, the AJ found that Petitioner had not shown that any similarly situated employees were treated more favorably than he was. Furthermore, the AJ determined that there was no evidence that the Agency's "delay" in referring Petitioner to CEAP had any impact on its decision to remove him, particularly in light of the fact that Petitioner self-referred himself to CEAP the day following his arrest in April 2014. The AJ concluded that he considered all the evidence and that Petitioner had not shown the Agency discriminated against him on the basis of race and age when it removed him.
On April 3, 2015, Petitioner filed a Petition for Review from the MSPB claiming that he had new evidence in the form of a recent MSPB ruling where Petitioner claims that a former employee (E2) with similar charges had his removal reversed. On May 6, 2015, the Agency filed an opposition brief to the Petition for Review arguing that the other decision was not new evidence because it has long been held that an initial decision issued in another, similar case, arriving at a result contrary to the decision reached in Petitioner's case, for example, is not new and material evidence.
On July 2, 2015, the MSPB issued the Final Decision affirming the initial decision and denying the petition for review. In regards to the claim that there was new evidence, the MSPB determined that it has long held that an initial decision in another case does not constitute new and material evidence. Moreover, the MSPB reversed that initial decision and sustained E2's removal. The MSPB also found that E2 was removed for possession of and being under the influence of the same illegal substances as Petitioner and that DO removed both E2 and Petitioner. Additionally, the MSPB found that that the AJ had correctly determined that all of the named comparators were not similarly situated and that Petitioner had not shown that the Agency discriminated against him based on his race and age when it removed him.
Petitioner filed the instant petition on July 23, 2015, alleging that the Agency discriminated against him on the bases of age, race and color (Black) when he was removed without an opportunity for an LCA. He alleges that two coworkers, D1 and "B2," who are both white, Caucasian and under 40, were treated more favorably when they were given LCAs.4
ANALYSIS AND FINDINGS
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).
Disparate Treatment
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, he 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 his 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).
Petitioner alleges that the Agency discriminated against him when it did not offer him an LCA, unlike other similarly situated employees outside his protected bases of race, age and color. Specifically, Petitioner alleges that the Agency treated D1 more favorably when it gave him an LCA, put him in the CEAP drug program, and gave him a 14-day suspension for possession of marijuana and drug paraphernalia aboard a government facility and for testing positive for amphetamines, methamphetamines and marijuana (THC) while on a duty status. Additionally, Petitioner alleges that the Agency treated D2 more favorably when it gave him an LCA and afforded him an opportunity to be put in the CEAP program for possession of marijuana aboard a government facility and testing positive for marijuana (THC).
In regards to D2 as a similarly situated comparator, Petitioner provided a copy of what may be D2's Decision on Proposed Removal but the document is redacted so the employee's name, position and the name of the deciding official are not provided. However, assuming this document pertains to D2, it shows that D2's offense was "Testing Positive for Amphetamines and Methamphetamines While in a Duty Status," which shows that he was not similarly situated because his conduct differed from Petitioner's because D2 was not found with illegal substances or drug paraphernalia aboard a military installation. The record shows that while D1's misconduct was similar to that of Petitioner's, D1 held a different position, in a different division and his adverse action was decided by another Agency official. Accordingly, we agree with the MSPB that D1 and D2 are not similarly situated coworkers.
Assuming, arguendo, that Petitioner established a prima face case of discrimination based on race and age; we agree with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for removing him. The Agency removed Petitioner based on his testing positive for amphetamines, methamphetamines and marijuana while in a duty status and possession of illegal drugs and drug paraphernalia on a military installation. Petitioner did not deny the charges and DO noted that he lost confidence in Petitioner's ability to be a trusted employee who would come to work ready to do his job in a safe and competent manner.
We also agree with the MSPB that Petitioner did not provide any evidence in support of his discrimination claim based on race and age. DO testified that he has not offered LCAs to any employees removed for drug-related offenses and the Agency argued that DO removed four other employees, without offering LCAs, for similar offenses as Petitioner. These employees were:
1. D5 (Caucasian, over 40), removed for "Possession of a Controlled Substance and Drug Paraphernalia Aboard a Military Installation and of Testing Positive for Amphetamines, Methamphetamines and Marijuana (THC) While in a Duty Status;"
2. D6 (Hispanic, over 40), removed for "Possession of a Controlled Substance and Drug Paraphernalia Aboard a Military Installation and of Testing Positive for Amphetamines, Methamphetamines and Marijuana (THC) While in a Duty Status;"
3. D7 (Hispanic, under 40), removed for "Possession of a Controlled Substance and Drug Paraphernalia Aboard a Military Installation and of Testing Positive for Amphetamines, Methamphetamines and Marijuana (THC) While in a Duty Status" and;
4. D8 (Caucasian, under 40), removed for "Testing Positive for Marijuana (THC), Codeine and Morphine (Opiates) While in a Duty Status."
Petitioner did not rebut the Agency's argument or provide any evidence to counter its claim regarding DO's similar treatment of other employees with similar offenses as Petitioner.
Petitioner raises a new discriminatory basis of color in this petition and this claim was not adjudicated by the MSPB. However, for the reasons stated above, we also find that Petitioner is unable to show that the Agency discriminated against him based on color.
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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove him was based upon race and age.
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 (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 Petitioner'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
__3/8/16________________
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.
2 Petitioner's supervisor referred him to CEAP in June 2014, after the results of his drug test came back positive.
3 Petitioner could not recall D3's last name but testified that he had a different supervisor and that D3's misconduct occurred in 2011. The AJ also found that it was unreasonable to expect the Agency to identify this individual since Petitioner only provided a first name.
4 In his petition, Petitioner names an employee "B2" but the record refers to B2 with a different first name. For the purposes of this decision, we will assume that B2 is the same person as D2 and refer to him as D2.
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