Petitioner, )

Equal Employment Opportunity CommissionMay 22, 2000
03a00041 (E.E.O.C. May. 22, 2000)

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