0320120007
02-02-2012
Michael A. Benjamin, Petitioner, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Michael A. Benjamin,
Petitioner,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 0320120007
MSPB No. DC-0432-09-0794-I-2
DECISION
On October 27, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as
a Food Service Specialist, GS-9 at the Agency’s Nutrition Department,
Clinical Center, National Institutes of Health, Department of Health and
Human Services facility in Bethesda, MD. His position required that he
be responsible for food quality, food, paper and chemical procurement,
food safety, cost control, customer satisfaction and staff development
in the Production Service Section of the Nutrition Department.
Petitioner’s performance for 2008 was rated as unacceptable as he
was found to be deficient in the critical element of “Administrative
Requirements for Manager/Supervisors and Team Leaders. He was placed
on a performance improvement program (PIP), wherein he had to address
27 alleged deficiencies.1 After the PIP expired it was decided that
Petitioner’s performance had not adequately improved. Therefore,
his supervisor recommended his removal from the Agency. His supervisor
believed that the Petitioner’s performance failures were quite serious
and related to food safety which could have directly and very negatively
affected patients health. Petitioner had also received an unsatisfactory
performance appraisal in 2006. Subsequently, petitioner was terminated
from the Agency.
Thereafter, Petitioner alleged that the Agency discriminated against him
on the bases of race (African-American), national origin (Indian), color
(dark skin), age (52), sex (male) and reprisal. He also alleged that he
was subjected to a hostile work environment when the Agency terminated
his employment.
A hearing was originally scheduled for this case, but Petitioner
withdrew his hearing request and asked that the appeal be decided on
the written record. An MSPB Administrative Judge (AJ) issued an initial
decision finding that the Agency’s penalty of removal was warranted
and the Agency had proven its charges by substantial evidence. The AJ
found that Petitioner exaggerated much of his testimony. The AJ also
found that Petitioner failed to demonstrate that he was discriminated
against. Specifically, the AJ determined that the comparators offered by
Petitioner were not similarly situated to him as they did not have the
same job duties or responsibilities. The AJ also found that Petitioner
failed to show that he was subjected to a hostile work environment.
The AJ noted that Petitioner’s only evidence regarding this claim
was his assertion that there was a racially hostile environment because
the African American supervisors did not go out to lunch with the white
managers and two cooks that worked in the kitchen believed that management
was more critical of Petitioner than other workers. The AJ found that
this was not severe or pervasive enough to establish a claim of hostile
work environment/harassment. The AJ also determined that Petitioner’s
claim of reprisal failed because even though management was aware of
Petitioner’s prior EEO activity, management had already placed him on
a PIP and had determined that he had not sufficiently improved.
Following the AJ’s decision, Petitioner sought review by the full
Board. The Board found that contrary to the Petitioner’s contention,
the AJ did not apply an improper legal standard to his disparate
treatment claim. Further, the Board agreed that Petitioner failed to
show that his comparators were similarly situated to him. The Board
acknowledged however, that the AJ erred when she did not compare one
of the comparators listed by Petitioner to him. The Board found that
when comparing this employee to Petitioner, even if you assumed that
their managerial positions were “nearly identical” and that she was
supervised by the same manager, Petitioner failed to produce evidence
indicating that the comparator had a history of numerous and varied
performance deficiencies similar to his performance record. Consequently,
the Board found that while the AJ failed to address the Petitioner’s
contention regarding this particular comparator, the record reflected
that her performance history was not sufficiently comparable to his as
to warrant a finding that she was similarly situated for purposes of
establishing his claim of discrimination. As such, the Board found that
this omission did not prejudice the Petitioner’s substantive rights.
Further, the Board found that Petitioner was not prejudiced by the Agency
providing additional justification for his removal before the Board.
The Board noted however, that there was no evidence that the proposing
or deciding officials improperly relied on any performance problems
other than those cited in the proposal notice. Finally with regard to
the Petitioner’s argument that the Nutrition Department allegedly
continues to have safety issues after his removal does not establish
that the Agency lied about its reason for removing Petitioner for his
unacceptable performance or indicate an inconsistency in the Agency’s
explanation for removing Petitioner. The Board found that the AJ made
no error in law or regulation that affected the outcome.
Petitioner then filed the instant petition.
CONTENTIONS ON APPEAL
Petitioner maintains that he was subjected to discrimination because
the reasons that were stated for his removal continue to exist in the
kitchen yet no one has been removed; nor has disciplinary action been
taken against anyone. Petitioner indicates that the fact that safety
standards appear to be more relaxed after his termination is sufficient
evidence of pretext.
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.
In the instant case, the Commission finds that even if we assume arguendo
that Petitioner established a prima facie case of discrimination as to
all bases, we find the Agency articulated legitimate, nondiscriminatory
reasons for its action, namely that Petitioner was terminated due to
his poor performance. We find that Petitioner provided no evidence
and the record does not show that the Agency’s reasons were pretext
for prohibited discriminatory animus. We find that Petitioner failed
to demonstrate that his race, national origin, color, sex, prior
EEO activity, or age, were considered with regard to the Agency’s
decision to remove him. Further, we find that other than Petitioner’s
conclusory statements about the condition of his former workplace, he
has provided no evidence which suggests that the safety standards were
relaxed after his termination. Finally, we find that Petitioner failed
to show that he was subjected to a hostile work environment/harassment
as the Agency’s actions were not sufficiently severe or pervasive
to rise to the level of illegal harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant’s employment). Accordingly, we CONCUR
with the Board’s decision finding no 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
__2/2/12________________
Date
1 The list included cooking foods to the correct temperature, heating
soups using the correct piece of equipment, making a service call for
broken equipment, using correct cooking methods, using the correct recipe,
keeping accurate temperature logs for prepared food, the correct labeling
of food as well as the storage of outdated food, etc.
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0320120007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120007