0320180004
01-24-2018
Eldon P.,1 Petitioner, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eldon P.,1
Petitioner,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Petition No. 0320180004
MSPB No. SF-0752-15-0749-I-1
DECISION
On October 3, 2017, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (the Commission) for review of the Final Order of the Merit Systems Protection Board (MSPB or Board) issued August 1, 2017, concerning his claim that the Agency discriminated against him on the bases of disability (mental), and reprisal when he was removed from his position on June 29, 2014. A MSPB Administrative Judge (MSPB AJ), in an initial decision, found that the Agency had not engaged in discrimination as alleged by Petitioner and affirmed his removal. 2 The instant petition for review is from that initial decision. We CONCUR with the MSPB's ultimate determination that Petitioner did not establish that the Agency discriminated against him as alleged.
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 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).
Based upon a thorough review of the record, including Petitioner's statement on appeal, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's disparate treatment claim of reprisal discrimination when the Agency removed him; we, however, analyzed this case according to the McDonnell Douglas paradigm and found that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him in reprisal for engaging in prior EEO activity. We also find that the MSPB AJ correctly found that Petitioner did not establish that he was subjected to disability discrimination. Consequently, we CONCUR with the final order of the MSPB finding no unlawful discrimination. We conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
_1/24/18_________________
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 In finding no reprisal discrimination, the MSPB AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
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