0320180053
09-11-2018
Wilbert R.,1 Petitioner, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbert R.,1
Petitioner,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320180053
MSPB No. SF-0752-17-0669-I-1
DECISION
On May 16, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, we CONCUR with the MSPB's finding that Petitioner did not establish that the Agency discriminated against him as alleged.
ISSUE PRESENTED
The issue presented is whether the Commission should concur with the MSPB's finding that Petitioner did not establish that the Agency discriminated against him in reprisal for prior protected EEO activity when it removed him from employment.
BACKGROUND
At the time of events giving rise to this matter, Petitioner worked as a Rigger, WG-5210-10, at the Agency's Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Petitioner received a temporary promotion to a WG-10 Rigger position for several months in 2008 and a permanent promotion to the position in 2010.
Petitioner filed an EEO complaint in 2015. According to the EEO Counselor's Report, Petitioner alleged that the Agency discriminated against him on the bases of age and reprisal when (1) it did not select him for a work leader position on February 24, 2015; (2) "the crane signaler qualification was withheld from him"; and (3) he was moved to a new work crew on June 1, 2015. The Report, which stated that the Counselor held a final interview on June 1, 2015, identified the following prior EEO activity: a January 14, 2008, informal complaint; a November 6, 2008, formal complaint; and a September 12, 2011, informal complaint.
Petitioner did not pass the crane-signaling test in 2008, 2010, 2011, 2012, 2013, 2014, or 2015. He has never held a crane-signaling qualification.
In a February 11, 2016, e-mail to an official (T1) who administered crane-signaling tests, Petitioner's supervisor (S1) wrote:
I am going to see if I can get him on the crane somewhere so he can practice and with that he cannot make another grievance toward either of us when he fails again. He will not have the 3 month period. Also, how often does he have to signal in this 3 month period? I don't want any room for him to file on us. Don't have the same anomalies for the next test.
On August 4, 2016, the Agency issued Petitioner a Notice of Proposed Removal for (1) failure to maintain a condition of employment and (2) failure to follow instructions. With respect to the first charge, the Agency stated that Petitioner had "not been qualified to perform stand-alone signaler duties since at least July 2008," that he had failed to qualify during a January 2016 test, and that the Agency had halted Petitioner's April 2016 pre-test training because he had not safely and properly signaled a lift. The Agency rescinded the proposed removal as part of a February 2017 settlement agreement.
Petitioner took, but did not pass, the crane-signaling test on June 6, 2017. By memorandum dated June 9, 2017, the Crane Operator Supervisor notified Petitioner that passing the crane-signaling test was a requirement of his WG-10 Rigger position and that failure to pass the test could result in his removal. The Supervisor directed Petitioner to retake the test.
In a July 10, 2017, e-mail to a Human Resources employee, another official (T2) who administered crane-signaling tests stated:
Just a heads up we are looking for a crane to take over this morning and once we get one I can contact you and give you a time and location of where the test will be taking place, if you choose to be there for the party. If not I will let you know how the test went.
Later that day, T2 informed the Human Resources employee that Petitioner again failed the signaling test.
On July 13, 2017, the Superintendent issued Petitioner a Notice of Proposed Removal for failure to obtain crane-signaling qualification. The Superintendent stated that, as a WG-5210-10 Rigger, Petitioner was required to obtain crane-signaling qualification. He also stated that Petitioner had been "provided multiple opportunities to practice and/or observe crane signaling." He noted that Petitioner failed crane-signaling tests on June 6 and July 10, 2017. Petitioner did not file a response to the Notice. In an August 4, 2017, Decision on Proposed Removal, the Deputy Director upheld the removal. He stated that the crane-signaling qualification was mandatory for Petitioner's position.
MSPB Decision
Petitioner filed a mixed-case appeal with the MSPB alleging that the Agency discriminated against him in reprisal for prior protected EEO activity. On April 5, 2018, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision affirming the removal and finding no discrimination.
In her decision, the AJ concluded that Petitioner did not prove that the Agency removed him in reprisal for prior protected EEO activity. The AJ found that the Agency established that crane-signaling competency was a requirement of Petitioner's position. She noted that the Agency conceded that Petitioner's position description did not state that passing the test was a required element of the position and that the test that Petitioner's facility used was not used agency wide. Nonetheless, she found that the Agency properly relied on the failed tests to determine that Petitioner lacked the requisite crane-signaling competency. She noted that Petitioner stipulated that he received crane-signaling training before the June and July 2017 tests. In addition, the AJ stated that the unrebutted testimony of the Deputy Director and Superintendent "showed that passing the test to show crane-signaling competency had been required of all journeyman riggers for many years, with the only change they implemented being the use of designated test providers to improve the consistency and fairness of testing." The AJ found that the test "was fair, uniformly applied, and only given after adequate training."
Further, the AJ concluded that Petitioner's prior EEO activity was not a motivating factor in his removal. She found that, even though the Deputy Director and Superintendent were aware of Petitioner's prior protected activity, there was no nexus between the activity and the removal. Although no one told Petitioner that he needed to pass the crane-signaling test until after he filed his 2015 EEO complaint, he acknowledged that supervisors had tried to help him to obtain crane-signaling qualifications for several years. The AJ did not find that the e-mails from S1 and T2 supported Petitioner's claim of reprisal. She noted that Petitioner stipulated that he received crane-signaling training before the June and July 2017 tests at issue in this case and that T1, the recipient of S1's February 2016 e-mail, was not involved in the July 2017 test. Although T2's reference to the July 2017 test as a "party" was inappropriate, the AJ found that "the involvement of human resources officials was prudent and not evidence of retaliation." She also found that "the July 2017 test was fair and [Petitioner] clearly failed it." The AJ determined that the Deputy Director and Superintendent had no motive to retaliate against Petitioner, and she accepted their unrebutted testimony that no other journeyman riggers had failed the crane-signaling test.
On May 10, 2018, the MSPB AJ's initial decision became the MSPB's final decision. Petitioner then filed the instant petition.
In finding no 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 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.
ARGUMENTS IN PETITION
Petitioner, through his attorney representative, argues that the Agency removed him in reprisal for protected EEO activity. He states that his lack of crane-signaling qualification was not an issue until he filed his 2015 EEO complaint. Noting that there was no written requirement that a rigger have crane-signaling qualification, Petitioner argues that the "requirement either did not exist, or was not enforced, prior to [his] filing an EEO complaint in 2015." He notes that he never caused any accidents and argues that, if passing the test was a requirement for his WG-10 position, then the Agency should have demoted him to a WG-5 or WG-8 position. Petitioner contends that the Agency did not present a legitimate, non-discriminatory reason for its action because an unwritten requirement is not a valid requirement. He also contends that the Agency's reliance on an unwritten requirement is a pretext for discrimination.
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).
ANALYSIS AND FINDINGS
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of discrimination; we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against him as alleged.
To prevail in a disparate-treatment claim such as this, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Petitioner must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13.
The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The Agency must clearly set forth the reasons for its actions and must "frame the factual issue with sufficient clarity so that [Petitioner] will have a full and fair opportunity to demonstrate pretext." Id. at 255-56. Although the Agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded Petitioner. See Waterford-Lifschultz v. Dep't of Homeland Security, EEOC Appeal No. 0120113819 (Sept. 20, 2013).
To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the Agency's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Petitioner can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp.). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a petitioner may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
We assume, for purposes of analysis only and without so finding, that Petitioner has established a prima facie case of discrimination based on reprisal. We find that the Agency has articulated a legitimate, nondiscriminatory reason for its action. As the Agency explained in the Notice of Proposed Removal, the Agency removed Petitioner because he did not obtain crane-signaling qualification. Although Petitioner had "multiple opportunities to practice," he failed crane-signaling tests on June 6 and July 10, 2017. In upholding the removal action, the Deputy Director stated that crane-signaling qualification was mandatory for Petitioner's position. The Agency's explanation clearly sets forth the Agency's reasons for its actions.
Petitioner has not established that the Agency's articulated reason is pretextual. He has not shown that the Agency's explanation is unworthy of credence. Petitioner acknowledges that he did not pass the crane-signaling tests and did not obtain the qualification. Although he asserts that the qualification was not necessary for his position, he has not shown that to be the case. There is no evidence that the Agency retained any other WG-10 Rigger who failed to obtain the qualification.
Further, Petitioner has not shown that a retaliatory reason more likely motivated the Agency's action. Having reviewed the evidence of record, we do not find S1's February 2016 statement that she wanted to let Petitioner practice so that he could not "make another grievance" and T2's July 2017 reference to the test as a "party" to establish a retaliatory motive here. Instead, the statements indicate a lack of confidence in Petitioner's ability. Similarly, we do not find that the timing of the removal action raises an inference of reprisal. The Agency issued the removal action after providing Petitioner with many opportunities to pass the crane-signaling test and obtain the qualification. Given the Agency's forbearance, we do not find that the decision to remove Petitioner approximately two years after he filed his 2015 EEO complaint to be retaliatory. In that regard, we note that the Agency did not remove Petitioner after he engaged in protected EEO activity in 2008 and 2011 and also failed crane-signaling tests.
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 unlawful discrimination. For the reasons set forth herein, 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 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
__9/11/18________________
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
0320180053
6
0320180053