0320140050
03-22-2016
Kenny C., 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
Kenny C., 1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320140050
MSPB No. DA0752110108B1
DECISION
On May 5, 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 following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly decided that the Agency did not discriminate against Petitioner on the basis of sexual orientation when it removed him.
BACKGROUND
Petitioner worked as a Social Worker, Suicide Prevention Counselor, at the Agency's Central Texas Veterans Health Care System facility in Temple, Texas. Petitioner alleged that the Agency discriminated against him on the basis of his sexual orientation (homosexual) when it removed him on October 29, 2010.
On June 4, 2010, the Agency instructed Petitioner to report for a Fitness of Duty Examination. Petitioner's managers determined that he needed to be evaluated due to Petitioner's allegations that his coworkers were trying to kill him; that listening devices were planted in his home and office; that many of his coworkers were Federal Bureau of Investigation agents; and that a pipe in his office was being used as a conduit for feeding poisonous gas into his office.
After the Fitness for Duty Examination, Petitioner met with a Clinical Psychologist who diagnosed Petitioner with having a "Delusional or Psychotic Disorder." On July 28, 2010, the Agency's Physical Standard Board met and determined that Petitioner was unable to meet the established guidelines for mental fitness as a Clinical Worker and that he was incapable of providing adequate professional care.
The Agency proposed Petitioner's removal on September 13, 2010, for his inability to perform the clinical duties of his position. After Petitioner submitted his response, the Agency decided to remove him on October 12, 2010, with an effective date of October 29, 2010.
On November 19, 2010, Petitioner initially appealed his removal to the MSPB. Petitioner's appeal was dismissed without prejudice at least twice before Petitioner filed his appeal on February 2, 2012. The hearing was held on July 17-18 and 26-27, 2012.
The MSPB AJ issued an initial decision on September 7, 2012, affirming the removal. The AJ found that Petitioner was unable to perform the duties of his job and that he was unable to show that the Agency discriminated against him based on his sexual orientation. Specifically, the AJ found that Petitioner did not identify anyone who was not homosexual, found unable to perform the duties of the job, and not removed.
On October 4, 2012, Petitioner requested a petition for review. In support of his sexual orientation discrimination allegation, Petitioner provided names of two coworkers who he claims are heterosexual and were not discharged by the Agency. Petitioner stated that they "were not subjected to Agency Management's pretext of using an unfounded Perceived Mental Disability to falsely determine that they were unable to perform their job duties."
On December 16, 2013, the MSPB issued a Remand Order reversing Petitioner's removal. The MSPB found that the Agency did not have the authority to order Petitioner to undergo the Fitness for Duty Examination. Specifically, the Agency did not show that the position that Petitioner occupied had medical standards or physical requirements, or was part of an established medical evaluation.
However, the MSPB affirmed the Initial Decision's finding that Petitioner did not prove his discrimination claim based on sexual orientation. The MSPB held that Petitioner did not provide any new evidence or argument demonstrating that the Agency treated employees who were not homosexual and were unable to perform the duties of their positions more favorably than Petitioner.
Additionally, the MSPB held that Petitioner should be allowed to bring his affirmative defense claim of disability discrimination.2 The MSPB found that Petitioner had raised his disability discrimination claim before the AJ but that it was not addressed. The MSPB held that the AJ should hold a supplemental hearing and issue an initial decision on Petitioner's disability discrimination claim. On March 6, 2014, the AJ issued an order canceling the hearing because Petitioner stated during the February 28, 2014, status conference that he did not wish to pursue his disability discrimination claim. Neither party raised an objection and the AJ issued the Initial Decision on March 25, 2014, dismissing Petitioner's appeal. The decision became final on April 29, 2014.3
On May 2, 2014, Petitioner filed the instant petition and submitted statements in support of his petition on May 28, 2014. With regard to Petitioner's discrimination claim based on sexual orientation, Petitioner reiterated that he was not able to identify a similarly-situated coworker outside of his protected class because no one else was "falsely accused of being unable to adequately perform their job duties."
ANALYSIS AND FINDINGS
Standard of Review
EEOC regulations provide that the Commission has jurisdiction over mixed-case appeals on which the MSPB has issued a decision that rules 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).
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Regarding the basis of sexual orientation, the MSPB AJ in this case treated sexual orientation discrimination as a violation of the Prohibited Personnel Practices. See 5 U.S.C. � 2302(b)(10) (providing, inter alia, that discrimination for or against any employee on the basis of conduct which does not adversely affect the performance of the employee is a prohibited personnel practice). However, the Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII. Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015). Because we find that the record has been adequately developed on this point, we can proceed without remanding this matter for further investigation.
Assuming, arguendo, that Petitioner had established a prima face case of discrimination based on sex (sexual orientation), we find that the Agency articulated a legitimate, nondiscriminatory reason for removing Petitioner. The Agency removed Petitioner based on his inability to perform the clinical functions of his position. While the MSPB later found that the Agency should not have ordered Petitioner to undergo the Fitness for Duty Examination, at the time that the Agency removed Petitioner, it did so based on the Physical Standards Board determination that Petitioner was incapable of providing adequate professional care. Additionally, Petitioner did not demonstrate that any conduct on the part of the Agency was based on any discriminatory animus. The deciding official denied removing Petitioner based on his sex (sexual orientation) and Petitioner did not provide any evidence to rebut the deciding official.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the
MSPB that Petitioner did not establish that the decision to remove him was based on his sex (sexual orientation).4
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 unlawful discrimination. Pursuant to the analysis of Petitioner's sex discrimination claim under Title VII, 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 sex 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 Petitioner'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
__3/22/16________________
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.
2 Petitioner also raised a discrimination claim based on reprisal but the MSPB found that there was no evidence in the record that he had raised this claim before the AJ and determined that Petitioner therefore had waived that defense. On January 23, 2014, Petitioner moved again to add reprisal as a claim, and on February 18, 2014, the AJ denied his motion for the same reasons.
3 The AJ issued an Erratum on April 9, 2014 providing Petitioner with notice that he may request a review of his discrimination claims before the Commission, which was not included in the Initial Decision.
4 Because Petitioner expressly indicated to an Administrative Judge that he did not wish to pursue a disability discrimination claim, we take no position here with regard to whether the Agency's actions violated the Rehabilitation Act, i.e., were job-related and consistent with business necessity. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (July 27, 2000) (web version) (Guidance), at 5.
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