Petitioner, )

Equal Employment Opportunity CommissionFeb 1, 2000
03990107 (E.E.O.C. Feb. 1, 2000)

03990107

02-01-2000

Petitioner, )


Eddie Curtis v. Department of the Air Force

03990107

February 01, 2000

Eddie Curtis )

Petitioner, )

) Appeal No. 03990107

v. ) MSPB No. CH-0752-97-0299-I-1

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

INTRODUCTION

On June 18, 1999, petitioner timely filed a petition with the Equal

Employment Opportunity Commission for review of the final decision of

the Merit Systems Protection Board issued on May 19, 1999, 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. In its decision,

the Board found that the Department of the Air Force (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 based

on race (African-American) and reprisal (prior EEO activity) 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 a Logistics Management

Specialist, filed a petition with an MSPB administrative judge alleging,

in pertinent part, that he was the victim of race discrimination and

reprisal when he was fired from his position effective January 21,

1997. The administrative judge issued a finding of no discrimination.

In a decision rendered on May 19, 1999, the entire Board upheld the

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

petitioner appeals.

A review of the record indicates that, after working for the agency for

approximately 14 � years, petitioner was reassigned to the Integrated

Logistics Support Division on June 17, 1996. Immediately following

the reassignment, complainant was oftentimes absent from his work site

for various appointments related to his EEO administrative complaints

and civil suits. As a result of these absences, his supervisor issued a

memorandum, dated September 4, 1996, informing him that, although he would

be given adequate time to work on his EEO complaints, he had to submit

prior requests for official time so that his absences could be approved.

On September 10, 1996, petitioner's supervisor informed him of a proposed

one-day suspension. The proposed suspension was based on several charges:

(1) failing to carry out assigned security duties on July 19, 1996;

(2) leaving the work without authorization on July 19, 1996; and (3)

unapproved absences on July 22, 23, and 30, and August 8, 9, 20, and 27,

1996. The proposed suspension proved futile as petitioner, on more than

one occasion, continued to leave the work site without permission, report

to work late, loaf at his desk, fail to comply with management directives,

and fail to fulfill security duties. This continued behavior caused

the agency to issue him a letter of counseling on September 30, 1996.

Additionally, on November 18, 1996, petitioner had to be escorted by a

security officer from the building in which he worked because he failed

to leave the premises upon his supervisor's request.<1>

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the Board with

respect to the allegation of discrimination based on race and reprisal

constitutes a correct interpretation of 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, a claim of discrimination is examined

under the three-part analysis originally enunciated in McDonnell Douglas

Corporation v. Green. 411 U.S. 792 (1973). 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 an

allegation of reprisal, petitioner must show: (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 contemporaneously with or subsequent to such participation;

and (4) that there is a causal connection between the protected activity

and the adverse employment action. Hochstadt v. Worcester Found. for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), 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 petitioner 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 petitioner has

established a prima facie case to whether he has demonstrated by

a 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, the Commission finds that the agency

has articulated legitimate, nondiscriminatory reasons for its action.

Specifically, the agency stated that petitioner was terminated for,

among other things, unexcused absences, repeated tardiness, failure to

follow his supervisor's directives, and leaving work without permission.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory event, petitioner now bears the burden

of establishing that the agency's stated reasons are merely a pretext

for discrimination. Shapiro v. Social Security Administration, EEOC

Request No. 05960403 (December 6, 1996). Petitioner 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)).

We find that petitioner has failed to meet this burden.

To support his claim of reprisal, he pointed out that he had no record

of misconduct before he began visiting the EEO office in August 1996 and

that his supervisor, the alleged discriminating official in this case,

began to keep a record of his (petitioner's) work behavior after he (the

supervisor) learned of the EEO activity. However, in light of one of the

agency's stated reasons (i.e., petitioner did not, as required, request

official time before participating in EEO related appointments), it is

not surprising that petitioner was not cited for misconduct until after

the EEO activity began. So, while such evidence may be strong enough

to prove that the agency's stated reason is a pretext for discrimination

in other situations, it is not enough in this particular case. Further,

the agency contended, and no evidence was presented indicating otherwise,

that petitioner, upon request, would have been granted official time to

engage in EEO activity as long as the absence was coordinated with his

supervisor and did not detrimentally interfere with the office's mission.

Also in support of his reprisal claim, petitioner argued that after

he filed his EEO complaints, his supervisor increased his penchant for

changing petitioner's work assignments, a charge his supervisor denied.

Because petitioner submits no evidence supporting this contention and

the Board found that the supervisor was more credible, again, we find

that this is not enough to prove pretext. Finally, petitioner argued

that his supervisor's insistence that he (petitioner) receive prior

permission for EEO activity-related absences is evidence of pretext.

The Commission disagrees. While it is true that complainants are entitled

to a reasonable amount of time within which to prepare and present their

EEO complaints, in order to receive such time, it must first be requested.

See, Thornhill v. United States Postal Service, EEOC Appeal No. 01880425

(July 5, 1988), request to reopen denied, EEOC Request No. 05880857

(March 1, 1989).

To prove pretext regarding his race claim, petitioner's strongest

argument seems to be that the alleged discriminating officials, his

supervisor and the Deputy Director, are White.<2> While such evidence

may be relevant, it cannot, on its own, support the pretext burden.

Furthermore, the evidentiary record is void of information indicating

that non-African-American employees engaged in conduct similar to that of

petitioner's and failed to be removed. As such, we find that petitioner

failed to prove that the agency's stated reasons were an effort to mask

discriminatory animus.

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.

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:

Feb. 01, 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

1 The work day had expired and the supervisor was leaving for the

day. The supervisor could not, however, leave the premises as long as

complainant was there because he (complainant) did not have the necessary

security clearance to remain in the building unescorted.

2 The supervisor is the official that originally proposed that

petitioner be terminated. The Deputy Director, however, was named as

a discriminating official in the formal complaint because he approved

the supervisor's proposal.