0320160011
03-02-2016
Carey G.,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
Carey G.,1
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320160011
MSPB No. SF-0752-14-0091-B-1
DECISION
On November 13, 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. For the reasons stated below, the Commission concurs with the MSPB's finding that Petitioner did not demonstrate that he was subjected to discrimination or a hostile work environment.
BACKGROUND
Petitioner worked as a Pipefitter, WG-10 at the Agency's Naval Facilities Engineering Command Southwest Department of Public Works facility in San Diego, California. The Agency removed Petitioner on the basis of three charges: (1) Failure to Meet a Condition of Employment; (2) Operating a Government Vehicle Without a Valid License; and (3) Lack of Candor. A hearing was held and the AJ upheld the removal and found that Petitioner did not prove his affirmative defenses. Petitioner appealed the AJ's decision arguing: 1) the penalty was unreasonable; 2) the charged offenses were inappropriate; 3) the Douglas Factors were misapplied; 4) the removal was in retaliation for Petitioner's prior EEO activity; 5) the removal constituted whistleblower reprisal; and 6) Petitioner suffered disparate treatment and/or a hostile work environment based on race.
In the AJ's March 11, 2014, Initial Decision, the AJ affirmed the removal by upholding the first and second charges of misconduct (failure to meet a condition of employment and operating a government vehicle without a license) but not the third charge of lack of candor (which the AJ noted was "clearly the least significant of the three." The AJ found, among other things, that: (1) it was undisputed that Petitioner's driver's license was suspended due to a conviction for driving under the influence; (2) Petitioner's job description required a valid state driver's license; and (3) Petitioner operated Agency vehicles during the time his license was suspended.
The AJ noted that the Board's precedent allows for removal as an appropriate penalty where, as here, an employee failed to maintain a condition of employment, and that Petitioner's supervisor carefully considered all the factors relevant to the penalty, and that the sustained charges, which were both serious and had a direct impact on Petitioner's ability to do his job safely and legally, merited the penalty of termination. The AJ also found that Petitioner did not show that other similarly situated employees were treated more favorably and that Petitioner did not show the Agency's nondiscriminatory reasons were pretext for discrimination. Further, the AJ found that Petitioner did not show that the Agency's actions were sufficiently severe or pervasive as to demonstrate that he was subjected to a hostile work environment.
Petitioner then filed the instant petition. On appeal, Petitioner contends, among other things, that the AJ erred in finding that he was not subjected to a hostile work environment. Petitioner maintains that the evidence clearly shows that the environment that he worked in was hostile, continuous, and insensitive. For example, he maintains that the building that he worked in was referred to as "the plantation" by Black employees. Management indicated that he did not get a position that he applied for because he was described as not being humble or a team player and because he did not get along with others. He was also described as not having the appropriate personality for a leadership position. Petitioner maintains that management did not like that he questioned assignments and challenged authority especially when it came to matters of safety on the job. Petitioner contends that he was not liked because he was not a subservient Black man. He also asserts that he was told by his supervisor that he did not like people that "play the race card."
Further, Petitioner maintains that managements' testimony is not credible because it was indicated that he was transferred to a new location to give him a fresh start. Petitioner asserts however, that the transfer occurred on a day that he had complained that a coworker had gotten "in his face." Petitioner maintains that if the transfer had truly been brought about to give him a fresh start some coaching or counseling regarding his behavior should have occurred, but none was provided. Petitioner also contends that the AJ erred with his disparate treatment analysis in that the AJ indicated that a coworker who also did not have a license was removed. Petitioner argues however that the coworker was allowed to stay until it was determined that Petitioner would be removed.
In response, the Agency contends that the AJ correctly found that Petitioner was not discriminated against or subjected to a hostile work environment. The Agency notes that Petitioner did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. The Agency maintains that the coworker's proposed removal was pending at the time of Petitioner's hearing. Moreover, the Agency also asserts that the comparators offered by Petitioner were not similarly situated to him as they did not work in the same unit, were not supervised by the same supervisor, and did not have the same disciplinary history. The Agency requests that the MSPB's finding of no discrimination and no hostile work environment proved be affirmed.
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).
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). 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, Petitioner bears the ultimate responsibility to persuade the fact finder 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).
In the instant case, we agree with the MSPB that Petitioner did not demonstrate that he was subjected to race discrimination, reprisal for engaging in protected EEO activity and/or a hostile work environment. We find that even if we assume arguendo that Petitioner established a prima facie case of race and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Petitioner failed to meet a condition of employment, and he operated a government vehicle without a valid license. We find Petitioner never denied that he did not meet the conditions of his employment or that in fact he did have a valid license. We find that Petitioner did not demonstrate that the Agency's articulated legitimate, nondiscriminatory reason was pretext for discrimination. We also find that the arguments made on appeal are the same arguments repeatedly made and which were correctly addressed by the MSPB.
With respect to Petitioner's assertion that he was subjected to a hostile work environment, we find that the incidents complained of were not severe or pervasive enough to have affected a term or condition of employment nor did they have the purpose or effect of unreasonably interfering with the work environment and did not create an intimidating, hostile, or offensive work environment. Moreover, we also note Petitioner's alternative explanation for the problems that he had with management, i.e., he was confrontational with respect to issues of safety and when he felt that coworkers were "getting in his face."
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
_3/2/16_________________
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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