03a10012
11-17-2000
Ralph Timberlake, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Ralph Timberlake v. United States Postal Service
03A10012
November 17, 2000
.
Ralph Timberlake,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Petition No. 03A10012
MSPB No. AT-0752-000-012-I-1
DECISION
By letter dated July 28, 2000, and postmarked August 9, 2000,<1> Ralph
Timberlake (petitioner) filed a petition with the Equal Employment
Opportunity Commission (EEOC or Commission) for review of an Order of
the Merit Systems Protection Board (MSPB) 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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The petition is governed by the provisions of the Civil Service Reform Act
of 1978 and EEOC regulations, 29 C.F.R. � 1614.303 et seq.<2> The MSPB
found that the United States Postal Service (agency) had not engaged in
discrimination as alleged by petitioner. For the reasons set forth below,
the petition is accepted and the Commission CONCURS with the decision
of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based on his
race (Black), sex (male), age (over 40) or in retaliation for prior
protected activity when the agency removed him effective September 22,
1999, constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives, and is supported by the record as
a whole.
BACKGROUND
After another employee complained that petitioner intentionally slammed a
tray of mail on his hand, the agency referred petitioner to an Employee
Assistance Program counselor and subsequently scheduled him for a
fitness-for-duty examination. Ultimately three physicians attempted to
examine petitioner; essentially, all three found him resistant, hostile
and uncooperative. For example, petitioner insisted that the inkblots
on the Rorschach Inkblot test could not be viewed as anything but what
they were, i.e. inkblots. While noting the paucity of data due to the
limited amount of testing which could be done, the physicians indicated
that petitioner may have a psychiatric condition which could result in
violent tendencies. Thereafter, the agency issued petitioner a removal
notice based on both his improper conduct in striking a fellow employee
with a tray of mail and on his failure to cooperate during his three
fitness for duty examinations.
In its initial decision dated June 6, 2000, the MSPB found that the
agency did not discriminate against petitioner on the bases set forth
above when it removed him. (However, the MSPB mitigated the removal
action on other grounds and instructed that petitioner be placed on an
indefinite suspension until such time as petitioner fully cooperated
in a fitness for duty examination and the agency received the results
of such an examination finding petitioner fit for duty.) The initial
decision advised petitioner that: unless petitioner filed a petition
for review with the MSPB, the decision would become final on July 11,
2000; he was entitled to petition the EEOC if he disagreed with the
decision on his discrimination claims no later than 30 calendar days
after the initial decision became final; and, if he did not want to
file a petition with the EEOC, he could seek judicial review of both
discrimination and nondiscrimination issues by filing a civil action
with the appropriate U.S. District Court or, if he chose not to contest
the MSPB's decision on discrimination, he could seek �judicial review
of the nondiscrimination issues by filing a petition with the United
States Court of Appeals for the Federal Circuit� (the �Court�).
On July 18, 2000, petitioner filed a pro se appeal with the Court
claiming that he was deprived of due process, did not receive a fair
hearing and his privacy rights were violated. While petitioner did
not raise allegations of discrimination in that document, the record
reflects that the Court notified him that he was required to �file
the required Statement Concerning Discrimination� by which petitioner
would affirmatively abandon his claims of discrimination. As noted
above, by letter dated July 28, 2000, and postmarked August 9, 2000,
petitioner thereafter filed his instant petition which reiterated his
claim of discrimination based on his race. See n. 1 supra. Petitioner
subsequently argued that the petition should be accepted because the Court
had asked him to give up his claims of unlawful discrimination and because
he did not receive due process and had his privacy rights violated.
On September 8, 2000, the Court dismissed the civil action for failure
to prosecute based on petitioner's failure either to pay the required
docketing fee or to file the Statement Concerning Discrimination.
See Timberlake v. United States Postal Serv., 2000 LEXIS 26741
(Fed. Cir. Sept. 8, 2000). In its comments on the petition, the agency
argues that the petition should be denied on the basis that petitioner
waived the discriminations issues when he filed the civil action with
the Court and that, in any event, the Court's dismissal operated as an
adjudication on the merits.
ANALYSIS AND FINDINGS
Under the doctrine of res judicata, a judgment in a prior action will
be a bar to any subsequent action on the merits of a complaint if: (1)
the prior judgment was rendered by a court of competent jurisdiction;
(2) the prior judgment constitutes a final judgment on the merits;
and (3) the same cause of action and the same parties or their privies
are involved. See, e.g., Evans v. United States Postal Service, EEOC
Request No. 05910919 (January 31, 1992); Commissioner of Internal Revenue
v. Sunnen, 333 U.S. 591, 597 (1948). Generally, an order dismissing a
civil action rendered by a court of competent jurisdiction constitutes
an adjudication on the merits. Pryor v. United States Postal Service,
EEOC Request No. 05850095 (January 31, 1986).
However, this matter concerns an appeal filed with the Federal
Circuit Court of Appeals with respect to a decision rendered by
the MSPB on a mixed case. Under 5 U.S.C. � 7703, review of MSPB
decisions concerning nondiscrimination claims (or raising frivolous
allegations of discrimination) are filed with the Federal Circuit
Court of Appeals. Powell v. Department of Defense, 158 F.3d 597, 598-99
(D.C. Cir. 1998). Such nondiscrimination claims are then reviewed on
the basis of the administrative record and the MSPB's determinations may
be set aside only if such determinations are found to be �arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with the law;� �obtained without procedures required by law, rule or
regulation;� or �unsupported by substantial evidence.� 5 U.S.C. �
7703(c)(1)-(3). If, however, an appeal concerns �review of [an MSPB]
action [on] a �mixed case' involving a claim under Title VII, the case
is filed in the district court and the district court has jurisdiction
to hear the entire claim.� Morales v. Merit System Protection Board,
932 F.2d 800 (9th Cir. 1991). Further, insofar as the discrimination
claim is concerned, the plaintiff �shall have the right to have the facts
subject to trial de novo by the reviewing court.� 5 U.S.C. � 7703(c));
Morales, supra. Thus, while a Federal District Court may entertain an
appeal from an MSPB decision which raises both nondiscrimination and
discrimination claims, the Federal Circuit Court of Appeals may not hear
appeals from MSPB decisions involving claims of discrimination. Indeed,
�[a] nonfrivolous allegation of discrimination in violation of Title
VII would divest the Court of Appeals for the Federal Circuit of
subject matter jurisdiction over an appeal from a decision of the
MSPB.� Webster v. Department of the Army, 911 F.2d 679, 683 n. 1
(Fed.Cir. 1990). Accordingly, the Court notified petitioner that it could
not assume jurisdiction over petitioner's claims of discrimination in
violation of Title VII and the ADEA.
After a careful review of this matter and based on the particular facts
presented, the Commission declines to hold that the instant petition must
be denied based on petitioner's abandonment of his pro se appeal to the
Court after the Court notified him that proceeding with the appeal would
foreclose his claims of discrimination.
Therefore, the Commission must next determine whether, with regard to
petitioner's allegation of discrimination, the decision of the MSPB
constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives, and is supported by the record as
a whole. 29 C.F.R. � 1614.305(c). The Commission finds that the MSPB's
decision is supported by the record and, for the reasons stated below,
CONCURS with its findings.
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance
to his or her allegation. In order to accomplish this burden petitioner
must establish a prima facie case of discrimination; that is, raise an
inference that unlawful discrimination has occurred. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); see also Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to
the agency to articulate a legitimate, non-discriminatory explanation for
its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden
of production, in other words, "going forward," may shift, the burden
of persuasion, by a preponderance of the evidence, remains at all times
on petitioner. Burdine, 450 U.S. at 256.
To establish a prima facie case of discrimination based on his race, sex
or age, petitioner must establish that: (1) he is a member of a protected
group under Title VII or the ADEA; (2) he was meeting the legitimate
expectations of his employer; and (3) he was discharged without cause,
or was singled out for termination while similarly situated employees
not in his protected group(s) were treated more favorably. Flowers
v. Crouch-Walker Corp., 552 F. 2d 1277 (7th Cir. 1977). To establish
a prima facie case of discrimination based on reprisal, petitioner
must establish that: (1) he engaged in EEO protected activity; (2)
the agency was aware of his protected activity; (3) subsequently, he was
subjected to adverse treatment by the agency; and, (4) there is a causal
connection between the protected activity and the adverse employment
action. McDonnell Douglas and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d
222 (1st Cir. 1976).<3> In the case at hand, while it is undisputed that
petitioner was a member of several protected groups, it is questionable
whether petitioner established that he was discharged without cause,
or was singled out for termination while similarly situated employees
not in his protected group(s) were treated more favorably. Specifically,
while petitioner identified three other employees who allegedly engaged
in similar conduct and were treated more leniently, the MSPB found that
petitioner failed to establish that his employment situation was nearly
identical and noted that he also failed to offer any evidence that those
employees also failed to cooperate in a fitness for duty examination
after the incidents. With respect to petitioner's claim of reprisal,
the MSPB noted that petitioner had filed at least one EEO complaint
prior to his removal, and assumed both that the deciding official knew of
that complaint and that a genuine nexus could be inferred. However, the
MSPB found that petitioner failed to establish that agency's articulated
reasons for removing him were a pretext for reprisal.
Accordingly, even assuming that a prima facie case of discrimination on
all bases had been established, the Commission finds that the agency met
its burden to explain its actions. See United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983) (When the
employer has articulated legitimate, nondiscriminatory reasons for its
actions, a reviewing body may properly shift the inquiry from whether
the complainant has demonstrated a prima facie case to whether he has
demonstrated by a preponderance of the evidence that the agency's reasons
for its actions were merely a pretext for discrimination). The facts
as set forth in the AJ's decision, incorporated by reference herein,
support the agency's explanation for its decision to remove petitioner.
While the MSPB determined that the removal should be mitigated on other
grounds, petitioner failed to establish that the reasons articulated
by the agency for its determination to remove petitioner were a pretext
for discrimination or reprisal.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity 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 policy directives
governing this matter, and is supported by the record as a whole.
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
November 17, 2000
__________________
Date
1 Petitioner's letter did not include a copy of the MSPB decision,
did not specify an agency and referenced only an appeal of �case AT-.�
Accordingly, by letter dated September 18, 2000, the Commission returned
petitioner's correspondence and instructed him that, should he have
received an agency final decision, he should return such decision together
with his original letter and the Commission's letter, within 10 days.
On September 28, 2000, petitioner again filed his instant petition.
Petitioner subsequently argued that the petition should be accepted based
on his original filing postmarked August 9, 2000, and the Commission
finds that the instant petition was in fact timely filed within 30 days
of the date the initial MSPB decision became final.
2 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 The Commission notes that petitioner did not allege that he either had,
had a record of, or was perceived as an individual with, a disability
(whether physical or mental) and, accordingly, the MSPB did not
address whether petitioner stated a claim under the Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.