03a10039
02-28-2001
John Stanislaus, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
John Stanislaus v. Department of the Army
03A10039
February 28, 2001
.
John Stanislaus,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 03A10039
MSPB No. DC-0752-00-0305-I-2
DECISION
On December 22, 2000, petitioner filed a timely petition with the Equal
Employment Opportunity Commission 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Petitioner, a former GS-11 Chemist with the agency's Forensic Toxicology
Drug Testing Laboratory (FTDTL) at Fort Meade, Maryland, was removed from
his position in March 1998 based on charges of unacceptable performance
and insubordination. Petitioner filed a mixed case complaint on
August 22, 1998, and the agency issued a final decision finding no
discrimination on February 25, 2000. Petitioner appealed to the Merit
Systems Protection Board (MSPB) but subsequently withdrew his hearing
request. The MSPB issued an Initial Decision which became final on
December 22, 2000 holding that the charges were sustained and that the
penalty of removal was within the tolerable limits of reasonableness
and was not motivated by discrimination on the bases of petitioner's sex
(male), race (Asian), national origin (Indian) or age (58).
EEOC Regulations provide that the Commission has jurisdiction over the
appeal of a final MSPB decision on the appeal of a final decision on
a mixed case complaint. 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).
Petitioner worked as a Laboratory Certifying Official and, as such, was
responsible for the accuracy and certification of drug testing results at
the FTDTL. There were two categories of Official; Negative Laboratory
Certifying Official (NLCO) and Positive Laboratory Certifying Official
(PLCO). NLCOs certified negative drug test results, and PLCOs certified
positive drug test results. Because a positive drug test result could
lead to administrative and/or criminal action against the tested, a
PLCO was a higher graded position which required specific training and
certification. Since 1995, petitioner's performance standards required
that he become PLCO certified, and in 1997, his position description was
amended to require GS-11 Chemists to be PLCO certified. Furthermore,
as of 1995, with the exception of petitioner, employees who were only
NCLOs were graded at levels lower than a GS-11.
In 1995, petitioner was given a detailed training schedule which would
have provided him with the training he needed to become PLCO certified.
Petitioner did not participate in the training, and he received an
unsuccessful performance rating. Again in 1997, petitioner was provided
with but declined to take the training. As a result, he received
another unacceptable performance rating and was subsequently placed on
a Performance Improvement Plan (PIP). When petitioner failed to enroll
in the training as required by the PIP, the agency proposed his removal.
Petitioner provided no substantive explanation for his belief that he
should not have had to take the required training.
After a thorough review of the record, the Commission finds that
complainant failed to establish a prima facie case of discrimination
on any of his alleged bases. Even assuming petitioner did meet his
prima facie burden, he failed to establish that his refusal to become
PLCO certified was not the real reason for his removal. Accordingly,
we concur with the MSPB Administrative Judge's finding that the agency
was not motivated by unlawful, discriminatory animus when it removed
petitioner from its employ. 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. For the foregoing reasons, it is the decision
of the Commission to concur with the final decision of the MSPB finding
no discrimination.
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
February 28, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 where applicable, in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.