0320160030
05-26-2016
Renaldo V.,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
Renaldo V.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160030
MSPB No. DE0752141446I1
DECISION
On October 26, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, we CONCUR with the MSPB's Final Order.
BACKGROUND
Petitioner worked as a WG-05 Motor Vehicle Operator at the Agency's Nebraska-Western Iowa Health Care System (detailed to Volunteer Service) in Omaha, Nebraska. Petitioner alleged that the Agency discriminated against him on the bases of race (African-American), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, effective September 28, 2012, the Agency removed him based on one charge of disruptive behavior (two specifications) and one charge of failure to follow supervisory instructions (one specification).2
A hearing was conducted by videoconference on October 2, 2014. Subsequently, an MSPB Administrative Judge (AJ) issued an initial decision sustaining Petitioner's removal. The AJ found that the Agency proved both charges and specifications, and that the decision to remove Petitioner was reasonable under the circumstances. The AJ held that the removal would have been sustained even if the second charge of failure to follow instructions was not sustained. Additionally, the AJ found that Petitioner was unable to establish his affirmative defenses because he failed to show by preponderant evidence that the Agency's decision to remove him was motivated by discriminatory animus, or that the action was taken in retaliation for engaging in protected EEO activity, or any other protected basis. The AJ also found that the record was void of any credible evidence of the same. Additionally, the AJ found that the Agency presented legitimate non-discriminatory reasons for the removal.
Petitioner appealed to the MSPB Board for a review of the initial decision. The Board denied the petition and affirmed the initial decision, but modified the AJ's penalty analysis to address Petitioner's argument that he was provoked into committing the misconduct at issue. Although the Board agreed with Petitioner's argument that a note written by the Assistant Chief to him was provoking, and therefore a mitigating factor that should have been considered in the penalty analysis, the Board found that the penalty of removal was reasonable. Petitioner then filed the instant petition.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals 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).
The Commission finds that the MSPB's decision in the instant matter 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. Upon review of the record, the Commission finds that even assuming arguendo that Petitioner established a prima facie case of discrimination based on race, disability, and reprisal, the Agency provided legitimate, non-discriminatory reasons for his removal. Petitioner presented no persuasive evidence of discriminatory animus surrounding the removal. Record evidence clearly establishes that Petitioner engaged in the conduct forming the basis of each of the charges and specifications resulting in his removal. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove him was based on discriminatory animus.
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 discrimination. The Commission finds that the MSPB'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.
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 Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_5/26/16_________________
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 In charge 1, specification 1, the Agency alleged that Petitioner confronted an Associate Director in a loud, profane, and aggressive manner and had to be escorted from the facility by Agency police. In charge 1, specification 2, the Agency alleged that the next day Petitioner telephoned an EEO investigator regarding the incident and stated that he might kill someone at work. In charge 2, the Agency alleged that Petitioner failed to report to a meeting with his supervisor, as instructed, to discuss his recent misconduct.
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