03A20067r
07-16-2002
Charles C. Cox, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Charles C. Cox v. Department of the Navy
03A20067
July 16, 2002
.
Charles C. Cox,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A20067
MSPB No. CH-0752-97-0848-I-2
DECISION
On May 17, 2002, 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 claims
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. , Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The petition is
governed by the provisions of the Civil Service Reform Act of 1978 and
EEOC Regulations 29 C.F.R. � 1614.303 et seq. The MSPB found that the
Department of the Navy (agency) had not engaged in discrimination as
alleged by petitioner. For the reasons that follow, the Commission
concurs with the decision of the MSPB.
The record indicates that petitioner was removed from his position as
a GS-11 Electronics Engineer with the agency's Naval Ordnance Station,
Louisville, Kentucky facility, effective August 23, 1995. The agency
stated that petitioner was removed from his position due to unacceptable
performance. On September 16, 1997, petitioner filed an appeal of his
removal with the MSPB asserting that he was discriminated against on the
bases of disability, age (D.O.B. 7/31/46), and reprisal. Following a
hearing, the MSPB Administrative Judge (AJ) issued an initial decision
upholding the agency's decision to remove petitioner. The AJ found that
the agency's decision to remove petitioner was based on unacceptable
performance, and that the agency had afforded petitioner a reasonable
opportunity to demonstrate acceptable performance after placing him on
a Performance Improve Plan (PIP). The AJ further found that petitioner
failed to establish that the agency's action constituted disability,
age or reprisal discrimination. The Board denied petitioner's petition
for review. Subsequently, the petitioner requested that the Commission
review the final decision of the MSPB.
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 allegations of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance to
his or her allegation. Petitioner's claims of discrimination are examined
under the tripartite analysis first enunciated in McDonnell Douglass
Corporation v. Green, 411 U.S. 792 (1973). In general, for a petitioner
to prevail, he must first establish a prima facie case of discrimination
by presenting facts that, if undisputed, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglass, 411 U.S. at
802; Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875 (1984).
This analysis, developed in the context of Title VII proceedings, also
applies to cases arising under the ADEA. Jackson v. Sears, Roebuck &
Co., 648 F.2d 225 (5th Cir. 1981). The Commission's analysis need not
focus on the establishment of the prima facie case where the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
The Commission finds that assuming that petitioner established a
prima facie case of disability, age, or reprisal discrimination, the
agency has articulated legitimate, nondiscriminatory reasons for its
action in terminating petitioner following his PIP period. The record
indicates that although complainant's performance improved during his PIP
period, within six months after the PIP was completed, his performance
deteriorated to an unacceptable level. Regarding petitioner's claim of
disability discrimination, the Commission finds that the record does not
support a finding that there is a nexus between petitioner's medical
conditions and his poor performance. With respect to complainant's
claim of age discrimination, we agree with the findings of the AJ
that petitioner failed to present evidence of any similarly situated
younger employee who was treated differently, i.e., who failed after a
PIP to perform at a minimally acceptable level and who was not removed
from employment. Finally, regarding complainant's reprisal claim,
the Commission finds that while the record reveals that complainant's
supervisors were aware of complainant's prior EEO activity, complainant
failed to demonstrate sufficient evidence of a causal connection between
their alleged retaliatory conduct and complainant's August 1995 removal.
Based upon a thorough review of the record and for the foregoing reasons,
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 (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 16, 2002
__________________
Date