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.