03a00041
05-22-2000
Petitioner, )
Michael K. Bowen v. Department of Veterans Affairs
03A00041
May 22, 2000
Michael K. Bowen, )
Petitioner, )
) Appeal No. 03A00041
v. ) MSPB No. CH-0752-97-0578-I-1
)
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
INTRODUCTION
On February 24, 1999, Michael K. Bowen (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission for review
of the 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, as amended, 42 U.S.C. � 2000e et seq. The Board
found that the Department of Veterans Affairs (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 constitutes a correct interpretation of the
applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
Petitioner filed a petition with an MSPB administrative judge alleging,
in pertinent part, that he was the victim of reprisal discrimination when
he was suspended without pay for thirty days for threatening a co-worker.
The administrative judge issued a decision finding no discrimination.
It is from that decision that the petitioner appeals.
A review of the record indicates that on January 15, 1997, petitioner,
employed by the agency as a Laundry Worker, and a co-worker engaged in a
dispute over a parking space in the agency's parking lot. For his role
in the verbal altercation, petitioner was suspended for thirty days,
commencing on June 1, 1997.
According to the testimonies of both parties, they entered into the
parking lot at approximately the same time. Petitioner drove past
an empty parking space with the intent of backing his car into it.
Not realizing petitioner's intentions, the co-worker, who was driving
behind petitioner, pulled his car into the empty space. When petitioner
proceeded to back his car into the parking space now occupied by
the co-worker, the co-worker reached into his car to blow the horn.
When petitioner realized that the space was occupied, an argument ensued.
According to the co-worker, when he refused to move his car, petitioner
told him that he would regret it and that he would take care of him
(co-worker) at 2:30 p.m., the time at which their tours of duty ended.
The co-worker's testimony was corroborated by the supervisor of the
two employees. According to the supervisor, the co-worker told him
about the incident as soon as it happened. The supervisor instructed
both parties to submit written statements regarding their versions of
the incident. The supervisor stated that petitioner told him that he
did not have time to [make a statement] and indicated that he would take
care of the co-worker at 2:30. Both the supervisor and the co-worker
interpreted the reference to 2:30 to mean that petitioner had planned
to physically confront the co-worker after work.
In his testimony, petitioner denied threatening anyone. According to him,
once the co-worker refused to move his car, he (petitioner) parked his
car into another space and forgot about the dispute. Petitioner also
testified that when he told his supervisor that he would take care of
the situation at 2:30, he meant that he would either talk about it with
the co-worker or file a complaint with the agency.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board regarding
the allegation of discrimination on the basis of reprisal constitutes
a correct interpretation of any applicable law, rule, regulation or
policy directive and is supported by evidence in the record as a whole.
29 C.F.R. �1614.305(c).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
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 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 v. Worcestor Found. For Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976); 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).
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, we find that the agency has articulated a legitimate,
nondiscriminatory reasons. Specifically, the agency stated that
petitioner was suspended without pay for thirty days for threatening
a co-worker.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory event, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant has failed to meet that burden. To support
his claim of reprisal discrimination, complainant offered no evidence
which would indicate that the agency's stated reason was pretextual.
Consequently, we find that he failed to prove discrimination.
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 final
decision 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.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
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:
May 22, 2000
______________ _________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:
________________________
Date
__________________________
Equal Employment Assistant