0320140037
01-13-2016
Gino T.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gino T.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320140037
MSPB No. PH-0752-12-0402-I-2
DECISION
On March 27, 2014, 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 of no discrimination.
BACKGROUND
Petitioner worked as a Customs and Border Protection Officer, GS-12 at the Agency's Dover Air Force Base in Dover, Delaware. Petitioner alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was removed from his position for conduct unbecoming and false statements. The record reveals that on the evening of March 23, 2010, Petitioner was responsible for processing a military flight from Spain. While examining the belongings of an elderly passenger, Petitioner discovered a large amount of prescription medication which Petitioner could not identify because it was mostly in Spanish. Petitioner called a Supervisory Border Protection Officer to inform him of what he had found and to obtain permission to work overtime. Petitioner was instructed to check the names of the passenger's medications to ensure that they were not prohibited by the Food and Drug Administration. This process took approximately one hour and during this time the passenger became ill and paramedics had to be called.
As a result of this incident, Petitioner was charged with conduct unbecoming. Specifically, it was noted that the elderly passenger was lying on the floor and Petitioner did not immediately check his well being or call for emergency services. The Agency maintained that Petitioner called the Supervisor before requesting medical attention for the elderly passenger and he had to be direct to call 911. The charge of false statements was based on the fact that Petitioner stated that he immediately called for 911 emergency services at the request of the passenger, that he called 911 services first and that during his call to 911, he received a call from the supervisor and was on the phone with both the supervisor and 911 services at the same time, and that he did not realize the passenger was on the floor until he was speaking with the 911 dispatcher. Based on Petitioner's failure to act it was recommended that he be removed from service. Petitioner however maintained that he was removed because of his prior EEO activity.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that with respect to the removal action, the Agency did not meet its burden of proof with respect to the charges of conduct unbecoming and false statements. The AJ found that a video of the incident showed that Petitioner acted on behalf of the passenger. The AJ also found that Petitioner demonstrated that he was subjected to reprisal because of his prior EEO activity in 2010 had involved the same supervisor that he called for instruction. Witness testimony, according to the AJ, also indicated that Petitioner was more scrutinized than other employee. As such, the AJ reversed Petitioner's removal and found that he was subjected to reprisal.
Thereafter, the Agency sought review by the full Board. The Board granted the petition for review and affirmed the initial decision to the extent that it reversed the removal action based on the Agency's failure to meet its burden of proof in respect to its charges, but it reversed the initial decision to the extent that it found that Petitioner proved by preponderant evidence his claim of retaliation. The Board found that the supervisor that proposed Petitioner's removal was outside of the Petitioner's chain of command and had no knowledge of Petitioner's prior EEO activity when she proposed the removal. Petitioner then filed the instant petition.
On appeal, Petitioner among other things, requests that the Board's finding that his removal was not supported by the record be affirmed. He also requests that the Board's finding that he was not subjected to reprisal be reversed. Petitioner contends that the Agency has a history of subjecting him to reprisal with regard to his leave, reassignment, suspensions, time and attendance, and requests for official time for his EEO activity. Petitioner asserts that the removal action was just another opportunity for the Agency to attack him because of his prior EEO activity.
In response, the Agency requests that the Commission not consider the MSPB's final decision, as there was no incorrect interpretation of law and the MSPB's final decision was supported by evidence in the record as a whole. The Agency contends that the Board's finding that Petitioner failed to establish that the deciding official "had a strong motive to retaliate" against Petitioner was correct. The Agency also maintained that the AJ in the initial decision misinterpreted witness testimony as the witnesses both agreed that Petitioner was scrutinized by managers because he drew attention to himself and had complaints against him from third parties.
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 case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Like the MSPB, we find no persuasive evidence of pretext. The record indicates that the management official who proposed Petitioner's removal was unaware of his prior EEO activity as she was stationed in Puerto Rico. The evidence indicates that she based her decision on the gravity of the situation and not on Petitioner's prior EEO activity. We find that other than Petitioner's conclusory statements that he had previously been subjected to reprisal, he presented no evidence which showed that the proposing supervisor was aware of his EEO activity or that the reasons given by the Agency were pretext for discrimination.
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. n's signature
Carlton M. Hadden, Director
Office of Federal Operations
_1/13/16_________________
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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