0320160001
02-25-2016
Emmitt E.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emmitt E.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160001
MSPB Nos. PH-0752-14-0706-I-1, PH-1221-14-0618-W-1
DECISION
On August 3, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 reprisal or discrimination.
BACKGROUND
Petitioner worked as a Healthcare Technician at the Agency's Ear, Nose, and Throat (ENT) Specialty Clinic at the Wilmington VA Medical Center in Wilmington, Delaware. The Agency decided to remove Petitioner on the charge that he performed work outside the scope of his position. It was determined that Petitioner had cleaned a patient's ears on several occasions and had given the patient medical advice. These actions were strictly forbidden by the Agency. He was also removed on the charge of conduct unbecoming a Federal employee. It was found that Petitioner had demonstrated a pattern of disruptive and inappropriate behavior including threats of physical violence, harassment, and intimidation towards staff and contractor employees. It was noted that Petitioner was suspended for 10-day after he threatened and became belligerent with a Human Resources Specialist, and the Anger Management Counselor.
Petitioner alleged that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (Black), disability (mental) and reprisal for prior protected EEO activity when he was suspended and then removed.
An MSPB Administrative Judge (AJ) issued an initial decision without a hearing. The AJ sustained both the suspension and removal charges. The AJ found that Petitioner did not prove any of his affirmative defenses, and denied his request for corrective action in the individual right of action (IRA) appeal concerning his 10-day suspension. Specifically, with respect to the affirmative defenses, Petitioner argued that he was subjected to reprisal because he made numerous disclosures over an extended period of time to many different individuals and entities, including Congress and the Office of Special Counsel. He also alleged retaliation for filing complaints with the Office of Special Counsel, the Office of Inspector General, the Federal Labor Relations Authority, and the Equal Employment Opportunity Commission.
The AJ found that even though management was aware of his prior EEO activity, there was no persuasive evidence that management harbored any animosity towards Petitioner as a result of his disclosures. The AJ found that the disclosures had occurred six months prior to the notice proposing his 10-day suspension; therefore, the necessary nexus did not exist. The AJ also found that Petitioner did not provide any evidence which suggested that his race or disability were factors in his suspension or removal. Moreover, the AJ found that Petitioner did not demonstrate that he was denied a reasonable accommodation. In this regard, the AJ noted that there was no evidence that management was aware of Petitioner's need for an accommodation because he never requested one nor did he provide medical documentation to support an accommodation request. The AJ also found that Petitioner did not demonstrate that he was subjected to a hostile work environment as the evidence did not show that the Agency's actions were sufficiently severe or pervasive enough to establish a hostile work environment.
Thereafter, Petitioner sought review by the full Board. On review, Petitioner asserted that the AJ failed to properly weigh Patient A's assertions, which he deemed "hearsay" evidence; improperly analyzed his whistleblowing claims; his disability discrimination claims; and his harmful procedural error claims, and failed to adjudicate his claims regarding veterans' preference. Petitioner also alleged certain procedural errors, including the denial of his stay request, discovery rulings, and the denial of his requests for an interlocutory appeal certification. Finally, Petitioner asserted AJ bias.
The Board found that there was no reason to grant Petitioner's petition. The Board did however supplement the AJ's response to Petitioner's assertion that the AJ improperly evaluated Patient A's assertions. The Board found that Petitioner's argument related only to specifications 1 and 3 of charge 1, i.e., performing work outside the scope of Petitioner's position. The Board found that it was well settled that relevant hearsay was admissible in administrative proceedings and even if the Board assumed that the Agency had violated its procedures in the manner in which it obtained evidence from Patient A, Petitioner had not persuaded the Board that any such error was likely to have caused the Agency to reach a conclusion different from the one it would have reached in the absence of the error.
The Board also supplemented the AJ's decision regarding Petitioner's failure to show that he was subjected to discrimination. The Board found that assuming arguendo that the decision maker was aware of Petitioner's whistle blower status, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that a committee ordered Petitioner to attend anger management because he demonstrated disruptive and inappropriate behavior and his actions were perceived as threats of physical violence, harassment, intimidation, and other threatening behaviors. The Board found that Petitioner did not deny his behavior and nor did he show that the Agency's reasons were pretext for discrimination.
The Board also commented on Petitioner's claim he was denied a reasonable accommodation. Petitioner argued that the Agency denied his request for an accommodation, i.e., to be transferred to a new supervisor, and he asserted that the "proposing official of the suspension and the deciding official were aware of his history of depression." The Board noted that the AJ found, among other things, that Petitioner presented only "scant evidence" of the nature of his disability other than to claim that he suffered from depression. Further, there was no evidence that he specifically asked his supervisors for an accommodation. The Board determined that even if these arguments were true, Petitioner did not explain how the AJ erred in his analysis of this claim. In finding that Petitioner did not demonstrate that he was subjected to discrimination or retaliation, the Board upheld Petitioner's removal.
Petitioner then filed the instant petition. Petitioner asserts that the MSPB erred when it omitted some of his discrimination claims that were accepted by the EEOC in his complaint. Petitioner also maintains that the Board made a decision based on evidence Petitioner to which he was not afforded an opportunity to respond. Petitioner indicates that he wishes to amend his complaint to include race and privacy violations by the office of Inspector General. He argues that the Board's decision was based on hearsay and gossip. He also argues that the charge of behavior unbecoming a federal employee was used as a threat. He maintains that a criminal complaint was filed with the Department of Justice and was forwarded to the Agency.
In response, the Agency maintains that Petitioner does not make any argument except those already considered by the AJ and the Board. Instead, the Agency maintains that Petitioner is launching a collateral attack on the MSPB appeal process; accusing Agency counsel of discriminating against him; and chastising the EEOC for failing to acknowledge his complaints. The Agency also maintains that Petitioner fails to present any actual evidence to support his allegations. More importantly, Petitioner, according to the Agency, fails to even address the issues currently within OFO's purview. The Agency asserts that the only issue, properly, before OFO is whether Petitioner established that he was unlawfully discriminated against on the bases of his disability, race, or reprisal. The Agency maintains that the AJ's initial decision and the Board's final order are thorough and well analyzed; and consequently, the Agency requests that the final order 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).
In the instant complaint, we concur with the MSPB's finding that Petitioner did not demonstrate that he was subjected to discrimination on any bases or was denied a reasonable accommodation, or subjected to a hostile work environment. We find that even if we assume arguendo that Petitioner established a prima facie case of reprisal and discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was removed from his position based on his volatile behavior and because he performed medical procedures without the proper authorization, or permission. While Petitioner disagrees with the decision and raises many assertions as to why the Agency might have suspended and removed him, he does not deny that he engaged in the conduct that the Agency maintains caused his removal. Nor does he identify any other employee that behaved the way that he did but was allowed to remain employed. We find that Petitioner has offered no argument which remotely suggests that the Agency's reasons were pretext for discrimination.
Further, with respect to Petitioner's claim that he was denied a reasonable accommodation, we note that Petitioner does not provide any information as to when this request was made, or to whom he made the request. He simply suggests that management was aware that he suffered from depression and therefore he should have been moved to a different supervisor. Even if we assume that Petitioner is a qualified individual with a disability, the Commission has long held that an employer does not have to provide an employee with a new supervisor as a reasonable accommodation.
Finally, we find that because Petitioner failed to establish above that the Agency was motivated by discrimination with regard to any of his claims, he cannot succeed on his harassment claim as well. A finding of a hostile work environment is precluded by our determination that Petitioner failed to establish that any of the actions taken by the Agency with respect to his claims were motivated by discriminatory animus. See Oakley v. U. S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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.s signature
Carlton M. Hadden, Director
Office of Federal Operations
___2/25/16_______________
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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