Larry Childers, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 8, 2000
03a00127 (E.E.O.C. Dec. 8, 2000)

03a00127

12-08-2000

Larry Childers, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Larry Childers v. Air Force

03A00127

December 8, 2000

.

Larry Childers,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 03A00127

MSPB No. AT-0432-99-0526-I-1

DECISION

INTRODUCTION

On May 7, 1999, Larry Childers (petitioner) timely filed a petition

with this Commission for review of a final decision of the Merit Systems

Protection Board concerning an allegation 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. The Board found that the agency had not engaged

in discrimination as alleged by petitioner. For the following reasons,

the Commission concurs with the Board's decision.

ISSUE PRESENTED

The issue presented herein is whether the Board's determination that

petitioner failed to prove that the agency discriminated against him

on the basis of reprisal<1> constitutes a correct interpretation of

the applicable laws, rules, regulations, and policy directives, and is

supported by the record as a whole.

BACKGROUND

Petitioner, formerly employed by the agency as an Automotive Equipment

Dispatcher (WG-6), filed an appeal with an MSPB administrative judge

alleging, in relevant part, that he was the victim of reprisal when he

was removed from his position with the agency, effective April 8, 1999.

On November 5, 1999, the administrative judge issued a decision finding

no discrimination. Petitioner appealed that decision to the entire

Board. In a decision rendered on June 29, 2000, the Board affirmed

the administrative judge's findings. It is from that decision that

petitioner appeals.

ANALYSIS AND FINDINGS

In the absence of direct evidence, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell

Douglas Corporation v. Green. 411 U.S. 792 (1973). See also Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,

324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to reprisal cases). 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. Id. at 802; Furnco Construction Corp. v. Waters, 438

U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its action. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the petitioner bears the ultimate responsibility to

persuade the fact finder by a preponderance of the evidence that the

agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

In order to establish a prima facie case of discrimination for a claim

of reprisal, petitioner must show the existence of four elements:

(1) that he engaged in protected EEO activity; (2) that the alleged

discriminating official was aware of the protected activity; (3) that

he was disadvantaged by an action of the agency contemporaneous with

or subsequent to such participation; and (4) that there was a causal

connection between the protected activity and the adverse employment

action. See, Hochstadt, Id., see also Mitchell v. Baldridge, 759 F.2d

80, 86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

In the present case, petitioner did not allege that prior EEO activity

motivated his removal. Instead, in attempting to establish a prima facie

case of reprisal, petitioner indicated that he engaged in prior MSPB

activity in 1997 regarding a reduction in force. Upon examining the

materials associated with petitioner's 1997 MSPB appeal, it appears he

did not allege that employment discrimination or reprisal was a factor

in the reduction in force. For those reasons, we find that petitioner

has failed to show that he engaged in prior EEO activity, and therefore

failed to establish a prima facie case of reprisal.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to concur with the Board's finding

of no discrimination. The Commission finds that the Board'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.

STATEMENTS OF RIGHTS - ON APPEAL

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

December 8, 2000

__________________

Date

1We note that in its response to petitioner's MSPB appeal, the agency

stated that petitioner also alleged discrimination on the bases of race,

color, religion, sex, national origin, disability, and age. But upon

examining petitioner's appeal materials, it appears that reprisal is

the only basis of alleged discrimination. We also note that in its

final decision, the Board addressed the issue of reprisal, but was

silent on the additional bases mentioned by the agency. Because our

jurisdiction in cases adjudicated by the MSPB is limited to those issues

of discrimination raised before the Board, those additional bases will

not be addressed herein.