0320160060
10-13-2016
Blake H.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Blake H.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Petition No. 0320160060
MSPB No. PH-0752-13-5332-I-2
DECISION
On August 18, 2016, 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. For the reasons that follow, we CONCUR with the MSPB's finding of no discrimination.
BACKGROUND
Petitioner worked as a Law Enforcement Specialist at the Agency's Bureau of Immigration and Customs in Williston, Vermont. On August 3, 2012, the Acting Section Chief made a report that Petitioner made threatening comments to his supervisor which included making comments about "suicide" and "terrorism." An investigation regarding the remarks was initiated and Petitioner was placed on administrative leave. On May 13, 2013, the Discipline and Adverse Action Panel proposed Petitioner's removal for making statements that caused anxiety or disruption in the workplace, disruptive behavior and failure to follow instructions. Petitioner did not present an oral or written reply to the notice of proposed removal. On July 26, 2013, the Assistant Director found that the Agency's reasons for Petitioner's removal were fully supported by the evidentiary record and that the removal was warranted in order to promote the efficiency of service. Among other things, the six specifications cited for the removal included: Petitioner's belief that someone from Vermont followed him to New York; on August 2, 2012, Petitioner indicating that he may resort to suicide or terrorism, if he could not find a job outside of Vermont; that the movie "Ted" was about his life as there were scenes in the movie that one would only know if they had been to his apartment; that someone broke into his apartment and played with the refrigerator light bulb, that his comments about suicide and terrorism were a joke and that people did not understand his sense of humor; and on August 8, 2012, while on leave, Petitioner called in and asked if he could come into the building to apply for a job as his system account had been hacked. The Agency also noted that Petitioner was repeatedly told to stay away from the building but continued to come and was forced by security to stay away.
Petitioner alleged that the Agency discriminated against him on the basis of religion (Muslim) when management officials made comments about his religion to a coworker. Petitioner alleged that his co-workers stated that: "They will not let another Muslim move up the ranks" and made statements that he will be made a "martyr." A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency had proven its charges by preponderant evidence and that the deciding official properly weighed the Douglas factors in making his penalty determination. The AJ found that the seriousness of the proven misconduct, coupled with the other aggravating factors such as the seriousness of the offenses and the repeated nature of the misconduct, outweighed the factors such as Petitioner's length of service and lack of prior disciplinary record.
Additionally, the AJ found that Petitioner failed to prove his affirmative defense of religious discrimination. Specifically, the AJ determined that Petitioner failed to set forth sufficient evidence to support his claim that his removal was based on religious discrimination as he failed to adduce any evidence that would indicate that any of the Agency officials involved with his removal knew of and/or retaliated against him based on his religion. The AJ found that he also did not show that any similarly situated person was treated differently. Accordingly, the AJ affirmed the Agency's removal actions
Thereafter, Petitioner sought review by the full Board. The Board however dismissed the petition for review as it was untimely filed without good cause. As such, the initial decision remained the final decision of the Board regarding the removal appeal. Petitioner then filed the instant petition.
On appeal, Petitioner, among other things, contends that the Board has continuously refused to return his original Muslim birth certificate. He maintains that he has been reinstated and since approximately September 2015, and is awaiting Orders to report to Texas. Petitioner questions why this case is still pending, maintains that he wants to get a clear understanding of the status of the case.
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).
To prevail in a disparate treatment claim absent direct evidence of discrimination, a petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. A petitioner carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find that even if we assume arguendo that Petitioner established a prima facie case of religious discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that Petitioner was removed for making statements in the workplace that caused anxiety or disruption. As the MSPB found, Petitioner did not establish that these reasons were a pretext for discrimination. Assuming Petitioner's description of his co-workers' comments was accurate, Petitioner simply did not establish his claim that his removal was based on religious discrimination as he failed to adduce any evidence that would indicate that any of the Agency officials involved with his removal knew of and/or retaliated against him based on his religion. Finally, we do not find that the matters raised by Petitioner on appeal establish that the Agency engaged in religious discrimination or that discriminatory animus was involved in this matter.
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 Complainant'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
_10/13/16_________________
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.
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