U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Barrett V.,1
Petitioner,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 2019003300
MSPB No. PH-0714-18-0490-I-1
DECISION
On April 11, 2019, Petitioner filed a timely petition with the Equal Employment Opportunity
Commission (the Commission) for review of the Final Order of the Merit Systems Protection
Board (MSPB or Board) issued March 22, 2019, concerning his claim that the Agency
discriminated against him on the bases of national origin (Pakistani), and reprisal when he was
removed from his position, effective September 13, 2018. A MSPB Administrative Judge (MSPB
AJ), in an initial decision, found that the Agency had not engaged in discrimination as alleged by
Petitioner and affirmed his removal. 2 The instant petition for review is from that initial decision.
We CONCUR with the MSPB’s ultimate determination that Petitioner did not establish that the
Agency discriminated against him as alleged.
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.
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 finding no reprisal discrimination, the MSPB AJ relied upon the MSPB’s decision in Savage
v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things,
determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In
rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB’s authority to
adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law.
Id.
20190033002
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).
The initial decision thoroughly discussed the facts in the record, and the instant decision
incorporates them as stated. Based upon a thorough review of the record, including Petitioner’s
statement on appeal, we find that although the MSPB AJ erred by not applying the McDonnell
Douglas analysis in deciding Petitioner’s disparate treatment claim of discrimination when the
Agency removed him; we, after analyzing this case according to the McDonnell Douglas
paradigm, find that the MSPB AJ correctly determined that Petitioner did not establish that the
Agency discriminated against him based on national origin or in reprisal for engaging in prior EEO
activity. Like the MSPB AJ, we find that the Agency articulated legitimate, non-discriminatory
reasons for the removal action, i.e., Petitioner’s lack of candor and conduct unbecoming a
Chaplain.3 We find no persuasive evidence of pretext or that discriminatory animus played a role
here. Consequently, we CONCUR with the final order of the MSPB finding no unlawful
discrimination. We conclude that the evidence in the record as a whole supports the MSPB’s
finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
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
3 Petitioner claimed to have seen two patients that the Agency later determined he never actually
met with and he put notes in their medical files indicating that he provided care to them. When his
actions were discovered and addressed with him, he changed his story to tried to cover up his
conduct, by, among other things, asking a nurse to lie on his behalf.
20190033003
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
July 11, 2019
Date
