03a10018
03-20-2001
Earl S. Cottman, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Earl Cottman v. Department of the Treasury
03A10018
March 20, 2001
.
Earl S. Cottman,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Petition No. 03A10018
MSPB Docket No. PH-0752-99-0369-I-1
DECISION
INTRODUCTION
On October 25, 2000, Earl Cottman (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (the Commission) for
review of the final order of the Merit Systems Protection Board (MSPB)
issued October 13, 2000, concerning his allegations of discrimination
based on race (African-American) and reprisal (prior EEO activity) in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The petition is governed by 29 C.F.R. �
1614.303 et seq. The MSPB found that the agency had not engaged in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated him based on race and
reprisal when it issued him a 45-day suspension constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives and is supported by the record as a whole.
BACKGROUND
According to the record, petitioner was a Criminal Investigator, GS-12,
with the agency. On January 15, 1998, petitioner attended a work-related
meeting in Maryland, met with an expert for a case he was investigating in
Virginia, and retrieved his personal mail from his post office box also
located in Virginia. In all three instances, petitioner was driving a
government owned vehicle (GOV). When leaving the Virginia post office to
return to his residence in Maryland, petitioner saw a former girlfriend
(ex-girlfriend) driving her car and followed her to her Virginia apartment
complex. When petitioner approached his ex-girlfriend's car, she sped out
of the complex parking lot and was stopped by a Virginia police officer
for driving erratically. Petitioner followed her, arrived at the scene
where she was stopped, approached the police officer, and identified
himself as a federal agent. Both petitioner and his ex-girlfriend were
escorted to a Virginia police department and interviewed. Almost a
month later, a Virginia police lieutenant contacted petitioner's
supervisor (Supv) about a stalking charge filed against petitioner
by his ex-girlfriend. Investigations by both the agency's Office of
Internal Affairs and petitioner's employing office were conducted.
The findings from the latter office's investigation were forwarded to
a Discipline Review Board,<1> which on May 11, 1999 issued petitioner a
Notice of Proposed 45-day Suspension (Notice) for �Misuse of a government
vehicle.� Petitioner submitted a written response to the Notice but,
on June 24, 1999, the deciding official, the Supv, sustained the Notice.
Petitioner filed an appeal with the MSPB alleging unlawful employment
discrimination on the bases of race (African-American) and reprisal (prior
EEO activity). Petitioner stated that other employees misused GOVs
and received less disciplinary action than he did.<2> Specifically,
petitioner cited a similarly situated Caucasian male (comparator)
who received a letter of reprimand for misuse of a GOV.
The agency stated that the comparator cited was not similarly situated
to petitioner because comparator's misuse was not deemed willfull.
According to the record, comparator transported another federal employee,
his girlfriend, to lunch in his GOV. The agency stated that employees
are not allowed to transport other persons in a GOV but are allowed
to drive themselves to lunch in a GOV, which is the factor that made
comparator's misuse unintentional. The agency stated further that
comparator's misuse was two years before petitioner's, there was a
different deciding official in comparator's case and comparator did not
have a prior 14-day suspension on his record as petitioner did.
After an MSPB hearing on the matter, an Administrative Judge (AJ) issued
an initial decision finding that petitioner failed to establish a prima
facie case of discrimination based on race or retaliation. Specifically,
the AJ found that petitioner did not show that a similarly situated
individual outside of his protected class was treated differently,
that the agency had discriminatory motivating factors, or that a causal
connection existed between petitioner's prior EEO activity and the
45-day suspension. The AJ further found that, assuming that petitioner
did establish a prima
facie case, he failed to establish that the legitimate, nondiscriminatory
reason articulated by the agency was pretextual. The AJ affirmed the
agency's action. Petitioner subsequently filed a petition for review to
the Board, which was denied. This petition to the Commission followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on race and reprisal
constitutes a correct interpretation of any applicable law, rule,
regulation or policy directive and whether said decision is supported
by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
When a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the petitioner to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the petitioner
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for discrimination. McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action ( i.e., petitioner willfully misused a GOV and had prior
discipline on his record), we may proceed directly to determining whether
petitioner satisfied his burden for showing pretext. Haas v. Department
of Commerce, EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal
Service Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Petitioner may do
this in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the petitioner that the agency's
articulated reason was false and that its real reason was discriminatory.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
Petitioner argued that the agency issued comparator a letter of reprimand
rather than a suspension but that it did not do the same for him.
Petitioner also asserted that many employees violate the GOV policy but
only employees the agency seeks to hurt get punished. Thus, he stated,
the agency's reason was pretextual.
Based on the record, petitioner did not show that the legitimate,
nondiscriminatory reason articulated by the agency was pretextual.
The agency issued petitioner a 45-day suspension as discipline for his
misuse of a GOV because he had a history of prior discipline and his
action was deemed willfull. Petitioner failed to prove discrimination
based on race.
Petitioner also alleged reprisal. In order to establish a prima facie
case of discrimination for an allegation of reprisal, petitioner must
show: (1) that he engaged in prior protected activity, e.g., participated
in an EEO proceeding; (2) that the responsible management official (RMO)
was aware of the protected activity; (3) that he was subsequently
disadvantaged by an adverse action; and, (4) that there is a causal
link between the protected activity and the adverse employment action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F.Supp. 318, 324 (D. Mass), affirmed, 545 F.2d 222 (1st Cir. 1976);
see also Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985);
Burrus V. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343
(10thCir. 1982), cert. denied, 459 U.S. 1071 (1982). The causal
connection may be shown by evidence that the adverse action followed the
protected activity within such a period of time and in such a manner
that a reprisal motive is inferred. Simens v. Department of Justice,
EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
According to the record, petitioner filed EEO complaints against the
agency in 1996 and a civil action based on employment discrimination
against the agency in 1998. The Supv admitted that he was aware of
petitioner's prior EEO activity although he was not the RMO involved.
The Supv stated further that he transferred petitioner out of the office
where he allegedly endured the actions that resulted in his prior EEO
activity, to prevent a hostile work environment. The Supv maintained
that petitioner was suspended because of his willful misuse of a GOV
and his prior record of discipline and not because of his prior EEO
activity. The record revealed that a 30-day suspension was the minimum
discipline allowed for petitioner's actions and that the discipline
could be increased based on aggravating factors, e.g., past discipline.
Petitioner established a prima facie case of retaliation, however, he
once again failed to establish that the legitimate, nondiscriminatory
reason articulated by the agency was pretextual. Accordingly, petitioner
has failed to prove that the agency retaliated against him.
CONCLUSION
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
Board'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.
STATEMENT OF PETITIONER'S RIGHTS
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
March 20, 2001
__________________
Date
1The Discipline Review Board is a group of
senior managers who are convened to render proposals for discipline and
to ensure consistency in discipline.
2According to the record, the statutory requirement for disciplining an
employee who willfully misused a government vehicle is no less than one
month.