03A30014
03-10-2003
Robert L. Tecklenburg, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert L. Tecklenburg v. Department of Veterans Affairs
03A30014
03-10-03
.
Robert L. Tecklenburg,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A30014
MSPB No. DC-0752-02-0508-I-1
DECISION
On November 2, 2002, 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.
Petitioner, a Readjustment Counseling Therapist, GS-11, Step 10,
at the agency's Alexandria Veterans Center facility, alleged that he
was discriminated against on the basis of reprisal for his testimony
concerning an EEO complaint when the agency reduced him in grade from
the position of Supervisory Readjustment Counseling Therapist, GS-12,
Step 7, to the position of Readjustment Counseling Therapist, GS-11/10,
effective November 5, 2000.<1> The agency reduced petitioner in grade
based upon the following charges: (1) Improper Employment of Personnel;
(2) Allowing Unauthorized Personnel to Engage in Client Care; and (3)
Misstatement of Material Fact in Connection with an Investigation.
The record reflects that the agency believed that petitioner failed to
register an intern (the Intern) with the Department of Veterans Affairs
Medical Center, Washington, D.C., allowed the Intern to co-facilitate
two groups and conduct client counseling, and misstated material facts
regarding the enrollment of the Intern.
On November 8, 2000, petitioner filed a formal EEO complaint with the
agency on his reduction-in-grade and amended that complaint on March 5,
2001 to include his other claims. The agency issued its final decision
on April 25, 2002, finding that petitioner failed to establish by a
preponderance of the evidence that the agency discriminated against him
with respect to the claims raised in his complaint.
On May 12, 2002, petitioner filed a mixed case appeal with the MSPB.
Petitioner declined a hearing, and the MSPB AJ made her decision
regarding petitioner's reduction-in-grade based solely upon the record.
The AJ did not sustain any of the agency's charges and reversed the
agency's action of demoting the petitioner. With respect to petitioner's
claim of reprisal, the AJ found that petitioner failed to establish a
nexus between petitioner's EEO activities and the agency's decision
to demote him. She determined instead that the Associate Director
(AD) took the action as a result of the investigation conducted by the
agency's Administrative Board of Investigation (ABI), which recommended
�appropriate administrative action and/or disciplinary [action be] taken
against [petitioner].� The AJ noted that, while she did not agree with
the report's findings, the AD decided to demote petitioner based upon his
concurrence with the findings of the investigation. The AJ concluded
that petitioner failed to meet his burden of proving that the agency's
action was in retaliation for his protected activities.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979). 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, that is, that a prohibited consideration
was a factor in the adverse employment action. McDonnell Douglas,
411 U.S. 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 actions. 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether petitioner has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
For the purposes of this decision, the Commission assumes that
petitioner established a prima facie case of reprisal discrimination.
Therefore, the burden shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. Here, the agency presented
evidence that the AD based his decision to reduce petitioner in grade
on the investigation conducted by the ABI. In addition, the AD cited
petitioner's past disciplinary record, which included a fourteen (14)
day suspension for failure to report an employee's (employee-1) assault
of another employee (employee-2), and a reprimand for failure to follow
instructions when petitioner entered into negotiations concerning a
Community-Based Outpatient Center.
Since the agency articulated legitimate, nondiscriminatory reasons
for its action, the burden returns to the petitioner to demonstrate
that the agency's articulated reasons were pretext for discrimination.
Petitioner asserts that an ABI should have never been convened, and the
agency's claim of �numerous allegations� against him is without merit.
The record reflects, however, that the agency's decision to convene the
ABI was based upon the complaint of another employee, and thereafter the
AD relied upon the ABI's characterization of the investigation and based
his decision to reduce petitioner in grade upon his concurrence with
those findings. We note that petitioner received the 14-day suspension
for failure to report employee-1's assault of employee-2 when he was
identified as the responsible management official in employee-2's EEO
complaint. Although petitioner contends that he was demoted because
of this EEO activity, the record establishes that the agency based
his demotion on its belief that petitioner had acted inappropriately
with respect to the incidents giving rise to the ABI's investigation.
The record reflects that the 14-day suspension and reprimand were
considered to the extent that the demotion was progressive discipline.
Therefore, the Commission finds that petitioner has failed to show that
the agency's reason is pretext for discrimination.
Based upon a thorough review of the record and for the foregoing reasons,
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 (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
_____03-10-03_____________
Date
1 We note that, in VA Case Nos. 2004-1972 and 2004-2232, petitioner also
claimed that he was discriminated against on the bases of disability
(Post Traumatic Stress Disorder) and national origin (German) when:
(1) during the Administrative Board of Investigation's investigation,
management violated his rights of privacy on April 12-13, 2000; (2) he was
not provided a performance rating for the period of April 1, 1999 to the
present; (3) he received a proposed reduction in grade on August 30, 2000;
(4) false allegations were made concerning his supervisory performance
on September 1, 2000; and (5) he was reassigned to the Veterans Center
in Silver Spring Maryland, effective March 1, 2001. Petitioner does
not raise the above stated bases or issues in his petition for review;
therefore, the Commission will not address them.