0320160018
04-27-2016
Scott K.,1 Petitioner, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Scott K.,1
Petitioner,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Petition No. 0320160018
MSPB No. SF0752140714I1
DECISION
On January 7, 2016, 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, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
Whether Petitioner established that the Agency discriminated against him when it removed him.
BACKGROUND
Petitioner worked as a State Chief Ranger at the Agency's Bureau of Land Management, Office of Law Enforcement and Security (OLES) in Reno, Nevada. During the week of August 19-23, 2013, the Nevada State Leadership Team (NSLT) rented conference room space at the Hilton Garden Inn in Reno, Nevada. The NSLT originally contracted to use Boardroom A, but requested the use of Salon Room A/B, which was larger. The request was granted on the first day of the conference room because Salon Room A/B was not being utilized. For the second day, the hotel's Chief Engineer (CE) saw Agency employees arranging the set-up in Salon Room A/B for use again and informed them that they needed to use Boardroom A for the remainder of their conference.
CE stated that Petitioner approached him and stated something to the effect of, "I'm going to use the whole Salon. I spoke with somebody; put the tables down, I have a gun." CE stated that Petitioner followed him out of the room, walking too closely to him, and that he felt Petitioner was "trying to assert his position over" him. CE reported the encounter to other hotel employees, and one sent an email to the Agency's contracting official detailing Petitioner's actions and stating that the hotel conceded the use of Salon Room A because they feared another incident would occur.
On August 24, 2013, Petitioner was seen at the site of the Burning Man event.2 Because Petitioner was not scheduled to work that event, the Assistant Special Agent in Charge (ASAC), who was Petitioner's direct supervisor at the time, ordered him to leave but Petitioner refused. Petitioner and ASAC then approached the Special Agent in Charge (SAC) to discuss Petitioner's refusal to leave. ASAC and SAC attempted to reason with Petitioner and when SAC ordered Petitioner to leave the event, he responded, "No, I'm going to go out and work," and drove off. When Petitioner failed to respond to radio communication, approximately twelve to fourteen officers were sent out to locate him. He returned approximately one hour later.
After learning about the incident, the Director of OLES decided to temporarily suspend Petitioner and delegated the Chief, Office of Professional Responsibility (COPR) to notify Petitioner and secure his weapon and badge. When COPR instructed Petitioner to take off his duty belt, he took it off and set it on his vehicle seat. Petitioner quickly drew his gun and COPR pushed the gun away instinctively. Petitioner then stated, "little nervous, are you, [COPR]?"
Petitioner was directed to report for an administrative interview on November 20, 2013, at 9:00a.m. At approximately 3:00a.m. EST, Petitioner sent SAC an email stating that he was postponing the interview until 11:00a.m. due to inclement weather. SAC responded that Petitioner was expected to report for the interview at 9:00a.m. but Petitioner did not arrive until 11:00a.m.3
On March 19, 2014, SAC proposed Petitioner's removal for three specifications of Conduct Unbecoming a Federal Employee: (1) comments and behavior toward CE at the Hilton Garden Inn; (2) drawing his weapon in such a manner that COPR needed to deflect the weapon; and (3) multiple attempts to use his government charge card for purchases at Best Buy and Amazon.com; three specifications of Refusal to Comply with a Proper Order: (1) refusing to obey ASAC's orders to leave the Burning Man event; (2) refusing to obey SAC's orders to leave the Burning Man event; and (3) multiple instances of failing to comply with directives while on administrative leave;4 and Failure to Cooperate in an Agency Investigation for failing to appear for his administrative interview at the scheduled time, as directed.
Petitioner provided both an oral and written reply. On July 1, 2014, the then Acting Deputy Director (ADD) decided to remove Petitioner, sustaining specifications 1 and 2 of Conduct Unbecoming a Federal Employee; and specifications 1 and 2 of Refusal to Comply with a Proper Order, stating that the preponderance of the evidence supported those specifications. ADD determined that Petitioner's behavior caused others to fear for their own safety by creating havoc and chaos at the Burning Man event; that the charges and specifications were extremely egregious, especially for someone in Petitioner's position; and Petitioner's actions created trust issues between himself and his managers, peers, and other Agency employees. Additionally, ADD found that Petitioner's potential for rehabilitation was low due to the fact that he never showed remorse or accepted responsibility for his actions.
On July 28, 2014, Petitioner appealed his removal to the MSPB. Amongst other things, he alleged that the Agency discriminated against him on the bases of disability (perceived mental disability) and reprisal (EEO complaints filed in May 2012, and February 2014) when it removed him.
A hearing was held on September 10-12, 2014, and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on May 15, 2015. The AJ affirmed Petitioner's removal, sustaining the charges of conduct unbecoming a federal employee and failure to comply with a proper order. The AJ also found that Petitioner did not prove his affirmative defense of discrimination based on disability and reprisal for prior EEO activity.
In regards to Petitioner's reprisal claim, the AJ found that while Petitioner filed an EEO complaint approximately two weeks prior to receiving his proposed removal and that SAC and ADD were aware of his prior EEO activity, he did not establish a genuine nexus between his filing an EEO complaint and his removal. The AJ considered any retaliatory motive by ADD to be low because he was not involved in Petitioner's EEO complaints and only became aware of his complaints when Petitioner informed him in his replies regarding the proposed removal.5 Accordingly, the AJ determined that Petitioner did not establish a prima face case of reprisal discrimination.
For Petitioner's disability discrimination claim, the AJ found that while witnesses made remarks about Petitioner's bizarre and erratic behavior, they did not comment that he was disabled based on a mental disability. Additionally, the AJ determined that the management officials credibly testified that they did not base their decision to remove Petitioner on any disability.
The AJ then found that the Agency articulated a legitimate, non-discriminatory reason for removing Petitioner. The AJ determined that the Agency considered the underlying charges of Petitioner's removal to be serious, especially considering his position as a law enforcement officer. Additionally, the AJ found that Petitioner did not provide any evidence that the Agency's legitimate, non-discriminatory reasons were pretext for discrimination based on disability. The AJ also noted that the Petitioner had not provided names of comparators who were treated more favorably than he was, in support of his disparate treatment claims. Accordingly, the AJ held that Petitioner had not shown by preponderant evidence that he was discriminated against based on disability or in reprisal for prior EEO activity.
Petitioner filed a petition for review with the full MSPB review board, which issued its Final Decision on December 8, 2015. The MSPB denied the petition for review and affirmed the initial decision. In regards to Petitioner's disability and reprisal discrimination claims, the MSPB found that the AJ thoroughly addressed Petitioner's arguments and that Petitioner has not provided a basis to disturb the AJ's findings.
Petitioner then filed the instant petition arguing that:
1. The initial decision contains erroneous findings of material fact;
2. The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case;
3. The AJ's rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion and the resulting error affected the outcome of the case; and
4. New and material evidence or legal argument is available that, despite Petitioner's due diligence, was not available when the record closed.
ANALYSIS AND FINDINGS
Standard of Review
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).
Disparate Treatment
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).
As an initial matter, Petitioner argues in his petition that he was discriminated against when the Agency took other prohibited actions against him.6 However, this decision will only address his discrimination claims when the Agency removed him based on the Commission's jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination, which in this case, was only Petitioner's removal.
Assuming, arguendo, that Petitioner had established a prima face case of discrimination based on perceived disability and reprisal for prior EEO activity, we agree with the MSPB that the Agency articulated legitimate, non-discriminatory reasons for his removal. Petitioner was found to have engaged in conduct unbecoming a federal employee and failed to comply with direct orders from his supervisors. The Agency noted that Petitioner's conduct warranted removal based on his misconduct as a high-ranking law enforcement official with the Agency and the loss of trust and confidence in Petitioner due to his actions and subsequent failure to acknowledge that his behavior was inappropriate.
We also agree with the MSPB that Petitioner has not provided any evidence showing that the Agency's proffered legitimate, non-discriminatory reasons for his removal were pretext for discrimination. In regards to Petitioner's claim that he was discriminated against based on his disability, he argues that multiple witnesses made statements regarding management officials' intentions to terminate him. However, Petitioner has not shown evidence that the management officials' intent to remove him was based on a perceived disability.
Petitioner also claims that Agency officials were not truthful, which he maintains shows pretext for discrimination. Specifically, Petitioner argues that SAC was untruthful when he stated in an earlier interview that he "doesn't use such language," but later admitted to "using profanity and sexually charged profanity." However, we are not persuaded by this argument because one inconsistent statement that is not even relevant to Petitioner's claim that he was discriminated against based on disability or reprisal is not persuasive in showing that SAC is untruthful about the matters at issue in this case.
Additionally, after conducting a hearing, the AJ noted that she found SAC to be credible. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015). We find that there is no evidence to disturb the AJ's credibility determinations of any of the witnesses.
Petitioner alleges that the AJ and MSPB erred because their decisions contained erroneous findings of material fact and erroneous interpretations of a statute, regulation or an erroneous application of the law to the facts. Petitioner notes that the AJ erred when she stated that he had not provided comparators to support his disparate treatment theory. Petitioner claims that he had provided a list of comparators as part of his pre-hearing submissions. The record shows that Petitioner did provide a list of people who he alleged were outside of his protected bases and treated more favorably than he was. However, since the named comparators held different positions than Petitioner and their misconduct differed, they are not similarly-situated to Petitioner. Accordingly, we find that the MSPB did not make any errors in their findings of material fact or interpretations of any applicable law, rule, regulation or policy directive.
Additionally, Petitioner argues that there was an abuse of discretion resulting in an error affecting the outcome of the case and that there is new and material evidence or legal argument available that, despite due diligence, was not available when the record closed. However, we find that Petitioner has not specified any abuses of discretion nor did he provide the new and material evidence or legal argument related to his discrimination claims.
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. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove him was based on disability or in reprisal for prior EEO activity.
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 Petitioner'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
__4/27/16________________
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 Burning Man is an annual special recreation event held during the last week in August. Participants recreate Black Rock City in a remote area, about two hours away from the nearest city. The event drew approximately 68,000-70,000 attendees in 2013.
3 The record shows that a team traveled from Washington, D.C. to conduct this interview and they could not postpone the meeting to 11:00a.m., because they needed to catch their return flight.
4 Petitioner was placed on administrative leave on August 26, 2013, until he was removed from the Agency.
5 The record indicates that in Petitioner's most recent EEO complaint, Petitioner claimed that SAC sexually harassed him when he allegedly propositioned him for sex.
6 Petitioner's additional claims of prohibited Agency actions are: (1) Petitioner was placed on involuntary leave; (2) Petitioner's law enforcement authority was suspended; (3) the Agency excluded Petitioner from the fact-finding process; (4) Petitioner was harassed; (5) Petitioner was denied general terms, conditions and/or privileges of employment as a result of his administrative leave and termination; and (6) Petitioner was not afforded a fitness for duty examination.
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