0320150036
03-02-2016
Rolf R.,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
Rolf R.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320150036
MSPB No. AT0752140039I1
DECISION
On March 9, 2015, Petitioner filed a 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.
BACKGROUND
Petitioner worked as a GS-6 Police Officer at the Agency's Fort Myers Outpatient Clinic (FMOPC) facility in Fort Myers, Florida. Petitioner alleged that the Agency discriminated against him on the bases of national origin (Not Specified), sex (male), religion (Not Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, effective October 27, 2012, the Agency removed him from his GS-6 Police Officer position on four charges of alleged misconduct.
While a hearing was convened on April 9, 2014, Petitioner, electing to waive his right to a hearing, discontinued it and requested that the matter be decided on the record. Thereafter an MSPB Administrative Judge (AJ) issued an initial decision sustaining Petitioner's removal. The AJ found that the Agency proved each of the four charges,2 and found that the decision to remove Petitioner was reasonable under the circumstances. Additionally, the AJ found that Petitioner was unable to sustain his affirmative defenses. The initial decision held that Petitioner failed to show by preponderant evidence that the Agency's decision to remove him was motivated by discrimination on the basis of his sex, national origin, religion, retaliation for engaging in protected EEO activity, or any other protected basis. The AJ also stated that the record was void of any credible evidence of the same. Additionally, 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. 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 gender, national origin, religion, 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 admits to having engaged in the conduct forming the basis of each of the charges and specifications resulting in the proposed removal. While Petitioner did not dispute any of the allegations contained in the notice of proposed removal, he asserted a variety of explanations for his conduct. 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
_3/2/16_________________
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's proposed removal included the following charges: Charge 1 (comprised of two specifications), Endangering the Safety of a Supervisor; Charge 2, Conduct Unbecoming a Police Officer; Charge 3 (comprised of four specifications), Failure to Follow Supervisory Instructions; and Charge 4, Inappropriate Conduct in the Workplace.
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