0320140083
02-04-2016
Thaddeus N.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thaddeus N.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Petition No. 0320140083
MSPB No. PH0752130292I1
DECISION
On September 25, 2014, 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, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly determined that the Agency did not discriminate against Petitioner on the basis of race when it removed him.
BACKGROUND
Petitioner worked as a Distribution Facilities Specialist at the Agency's Defense Distribution Susquehanna facility in Mechanicsburg, Pennsylvania. Petitioner alleged that the Agency discriminated against him on the basis of race (African-American) when it removed him on March 3, 2013. On July 24, 2012, Petitioner was arrested at work for an off-duty charge of supplying cocaine to another party, who then sold the cocaine to a confidential informant. On August 2, 2012, the Agency issued Petitioner a Notice of Proposed Indefinite Suspension and on August 16, 2012, and placed on an indefinite suspension, effective August 21, 2012.
On December 18, 2012, Petitioner pleaded guilty to one felony count of Possession with Intent to Deliver Cocaine and he was sentenced to two years' probation and a $500 fine. On January 4, 2013, the Agency proposed Petitioner's removal on one count of Conduct Unbecoming a Federal Employee, based upon his criminal conviction. In his written reply, Petitioner admitted to the misconduct and asked for a second chance. On February 8, 2013, the Agency decided to remove Petitioner, with an effective date of March 3, 2013.
Petitioner appealed his removal to the MSPB alleging a claim of disparate penalty and an affirmative defense of discrimination based on race. A hearing was held on June 5, 2013, and an MSPB Administrative Judge (AJ) issued an initial decision on July 11, 2013, canceling the removal and substituting a 90-day suspension without pay. The AJ found that Petitioner had established his claim of disparate penalties when he provided four comparators who were convicted of various crimes, but not disciplined by the Agency. In regards to Petitioner's discrimination claim, the AJ found that Petitioner did not establish discrimination based on race because the four named Caucasian comparators were not "nearly identical" because their misconduct was different than Petitioner's.
On August 15, 2013, the Agency filed a petition for review of the initial decision. The MSPB issued the Final Order on August 21, 2014, vacating the portion of the initial decision mitigating the removal to a suspension; reinstating Petitioner's removal and; affirming that Petitioner did not prove his affirmative defense that he was discriminated against based on his race. For Petitioner's discrimination claim, the MSPB found that none of the named comparators were similarly situated because they did not report to the same supervisor and did not engage in conduct that was similar to Petitioner's misconduct without differentiating or mitigating circumstances.
Additionally, the MSPB found that the Agency was unaware of any of the comparators' misconduct until Petitioner provided that information. Petitioner conducted a search of public court records, but there was no indication that this information could have been obtained by reviewing the Agency's personnel records. Furthermore, the record contained no evidence that any of the comparators' supervisors were aware of their off-duty misconduct while Petitioner's supervisors were aware of his misconduct because he was arrested at work while on duty.
On September 25, 2014, Petitioner then filed the instant petition.
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).
Assuming, arguendo, that Petitioner had established a prima face case of discrimination based on his race, we find that the Agency articulated a legitimate, nondiscriminatory reason for removing Petitioner. The Agency removed Petitioner based on his arrest and conviction of possession of cocaine with intent to distribute. The Agency considered Petitioner's misconduct to be very egregious and not compatible with federal service. Additionally, the Agency determined that Petitioner had no potential for rehabilitation due to a lack of candor because he initially denied the misconduct, pleaded guilty to the charges but then told the Agency that he was falsely accused.
Additionally, Petitioner did not demonstrate that any conduct on the part of the Agency was based on any discriminatory animus. While Petitioner alleges that he was treated differently than the comparators based upon his race, the Agency stated that it did not discipline any of the comparators due to the fact that the Agency was not aware of their off-duty misconduct. We agree with the MSPB that Petitioner did not provide any evidence showing that the Agency knew of their misconduct and decided not to discipline them.
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 upon 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 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
___2/4/16_______________
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.
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