0320160016
05-10-2016
Raphael C.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raphael C.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160016
MSPB No. PH0752150311I1
DECISION
On December 28, 2015, 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. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that he was discriminated against.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's ultimate determination that Petitioner did not establish that his removal was based on discrimination due to his race despite the MSPB's reliance on an erroneous standard of review.
BACKGROUND
Petitioner worked as a Mail Clerk at the Agency's Pittsburgh Healthcare System facility in Pittsburgh, Pennsylvania. Petitioner alleged that the Agency discriminated against him on the basis of race (African-American) when he was removed on August 10, 2014.
On May 6, 2014, the proposing official (PO) issued Petitioner a Proposed Removal for "Failure to Properly Carry Out Your Duties" and "Inappropriate Conduct."The record reflects the following events leading to the proposed removal: On December 31, 2013, Petitioner allegedly yelled that he was "always being picked on" at a coworker who told Petitioner to use a different colored shipping bag. On January 21, 2014, Petitioner was instructed to pick up and deliver blood samples, which he did not do. As a result, the samples spoiled and had to be destroyed. On January 22, 2014, Petitioner's supervisor (S1) informed him that he would no longer deliver mail to the research building due to complaints. Soon afterwards, S1 heard loud bangs and saw Petitioner putting on his coat to leave. S1 asked Petitioner where he was going and Petitioner responded, "I'll deal with you later," whereupon S1 became concerned about his personal safety.
On January 24, 2014, Petitioner was accepting a package from a pharmacy employee (PE) and was responsible for verifying the numerical identifier at the time of the pick-up. PE stated that when she started to read the tracking number, Petitioner walked to the refrigerator to get a box of chocolates and began eating them. PE stated that when she tried to read the numbers aloud again, Petitioner got up to talk to a coworker. On January 28, 2014, the pharmacy was conducting an audit of the tracking numbers for its shipments. The lead mail clerk noted that Petitioner was assigned to the shipments on January 24, 2014, and that he had not properly followed protocol, which caused a break in the chain of custody for those medical shipments.
On March 19, 2014, Petitioner's coworker (C1) remarked that Petitioner's lunch breaks were too long. Petitioner walked over to her and yelled, "I'm a grown man," while using erratic hand gestures. C1 asked Petitioner to leave several times and when he did not, C1 pushed the panic button to summon the police. Once Petitioner realized that C1 had pushed the panic button, he went to the police area, which is located in the same building. An Agency police officer (PO) asked Petitioner to explain the situation and Petitioner approached PO in an aggressive manner. After an investigation into the situation, Petitioner was arrested for disorderly conduct.
In response to the proposed removal, Petitioner submitted a written and oral reply, and on July 30, 2014, the deciding official (DO) issued a decision sustaining the removal, effective August 10, 2014. DO also took into consideration Petitioner's past disciplinary record, which included a reprimand for failure to follow supervisory instruction; a five-day suspension for failure to properly carry out his duties; and a seven-day suspension for disrespectful conduct.2 DO found that Petitioner did not accept responsibility for his actions and that he demonstrated "volatile and aggressive behavior" when attempts at rehabilitation were made.
Petitioner initiated EEO counseling on August 22, 2014, and filed a mixed-case complaint on October 7, 2014, alleging that he was discriminated against based on his race when he was removed.3 The Agency conducted an investigation and issued its decision (FAD) on May 22, 2015. The Agency found that Petitioner had not shown that he was discriminated against. The Agency determined that Petitioner did not identify a comparator outside of his protected basis who was treated more favorably, nor did he provide evidence that management's legitimate non-discriminatory reason for his removal was pretext for discrimination.
Petitioner appealed the FAD to the MSPB and a hearing was conducted on November 12, 2015. The MSPB Administrative Judge (AJ) issued an Initial Order on November 24, 2015, which became final on December 29, 2015. The AJ affirmed Petitioner's removal, finding that Petitioner had not proven his affirmative defense that he was discriminated against based on race when the Agency removed him.
In finding no discrimination, the AJ relied upon the MSPB's decision in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB's authority to adjudicate and remedy alleged violations of 42 U.S.C. � 2000e-16 is a matter of civil service law. Id.
The MSPB further held:
[W]hen an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. � 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Such a showing is sufficient to establish that the agency violated 42 U.S.C. � 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. � 2302(b)(1). In making her initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described in Troupe [v. May Department Stores Company, 20 F.3d 734 (7th Cir.1994)], either alone or in combination. If the appellant meets her burden, we then will inquire whether the agency has shown by preponderant evidence that the action was not based on the prohibited personnel practice, i.e., that it still would have taken the contested action in the absence of the discriminatory or retaliatory motive. If we find that the agency has made that showing, its violation of 42 U.S.C. � 2000e-16 will not require reversal of the action.
Id. at 639 - 640.
In Petitioner's case, the AJ found that the record did not show that it was more likely than not that Petitioner was treated differently because of his race. The AJ determined that Petitioner's theory that race was a motivating factor in his removal was uncorroborated and that he had not proven his affirmative defense. Petitioner then filed the instant petition. On February 29, 2015, the Agency filed a response to the Petition for Review asking that the Commission affirm the finding of no discrimination.
ANALYSIS AND FINDINGS
Standard of Review
EEOC regulations provide that the Commission has jurisdiction over mixed-case complaints 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. 29 C.F.R. � 1614.305(c).
Disparate Treatment
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of race discrimination when the Agency removed him; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Petitioner had established a prima facie case of discrimination based upon race, we find that the Agency articulated a legitimate, non-discriminatory reason for removing him. Petitioner was removed for two incidents where he did not properly carry out his duties and three incidents of inappropriate conduct. The Agency found that these incidents, along with Petitioner's past disciplinary record, showed that rehabilitation was unlikely because Petitioner's misconduct continued to occur, and had a negative impact on the critical responsibilities of the Agency.
Additionally, we agree with the MSPB AJ that Petitioner did not show any evidence that he was removed because of his race. While Petitioner provided character references, he did not provide any testimony or evidence to show that the Agency's reasons for his removal were pretext for discrimination.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the decision to remove him was based on his race.
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 unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Bernadette B. Wilson's signature
Carlton M. Hadden, Director
Office of Federal Operations
__5/10/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 The Agency proposed a 14-day suspension when Petitioner stated to a co-worker, "God give me the strength because I'm going to go off on you." The suspension was mitigated to seven days and Petitioner was issued an abeyance agreement. On May 5, 2014, the Agency revoked the abeyance agreement and issued the 7-day suspension.
3 Petitioner also alleged a claim of hostile work environment based on his race but the Agency dismissed this claim because the actions at issue did not meet the requirement of being severe or pervasive. The Agency also dismissed two additional claims that were deemed untimely.
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