0320140052
04-16-2015
Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320140052
MSPB No. AT-0752-11-0710-I-1
DECISION
On May 27, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Petitioner worked as the Chief of Nutrition and Food Services, GS-13 at the Agency's Central Alabama Veterans Health Care System facility in Alabama. Petitioner alleged that the Agency discriminated against him on the bases of race (Caucasian), sex (male), religion (Jewish), age (51), and reprisal for prior protected EEO activity when effective June 20, 2010, the Agency removed the Petitioner from his position based on five charges: (1) sexual harassment; (2) threats, intimidation, and coercion of subordinate employees; (3) falsification of employee's attendance record; (4) disrespectful conduct, use of insulting, abusive, or obscene language to or about other personnel; and (5) deliberate failure to follow instructions.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency proved its case. The AJ found that Petitioner's removal was warranted based on the Petitioner's actions with regard to the five charges. The AJ also found that Complainant failed to demonstrate that he was subjected to discrimination on the bases of sex, race, religion, age, and reprisal, as the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the decision to terminate the Petitioner was made after it was determined that the Petitioner sexually harassed an employee. The Agency stated that the Petitioner kissed an employee on the cheek without her permission and then when she indicated that she was going to tell her significant other that a white man had kissed her, he grabbed her face with both hands and kissed her on the mouth and told her that now she could tell him that a white man kissed her.
The decision to terminate him was also based on that fact that Petitioner used threats, intimidation, and coercion of subordinate employees; falsified an employee's attendance record, engaged in disrespectful conduct, and deliberately failed to follow instructions. To show pretext with regard to his age claim, Petitioner argued that he believed his age was a factor because the Agency advised him in response to his question that he would not be eligible to receive a retirement annuity until he turned 56 years of age. The Agency maintained that even if true that did not establish that age played a factor in his removal.
Petitioner also asserted that no Jewish employees remained in the office, as the last Jewish employee had transferred to another office. The Agency explained that Petitioner failed to show that the employee's transfer had anything to do with his religion.
He also indicated that employees of other races were treated better when they violated the rules. The Agency indicated that Petitioner failed to demonstrate that any employee who had acted in the same manner was allowed to keep their job.
Further, the Agency found that while it was known that Complainant had prior EEO activity and that the deciding official had been named in one of Petitioner's five complaints, his most recent EEO activity occurred over a decade from the instant matter. As such, the Agency found that no nexus existed with regard to Petitioner's prior EEO activity. The AJ determined that Petitioner failed to establish any of his affirmative defenses, and having previously concluded that the penalty of removal was a reasonable penalty for the sustained charges and specifications, the AJ concluded that the Agency action should be affirmed.
Petitioner sought review by the full Board. The Board found that the Petitioner failed to establish any basis for granting the petition for review and therefore denied Petitioner's petition for review. Petitioner then filed the instant petition. Other than a request that the case be reviewed, Petitioner made no new arguments.
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). In the instant case, we find that even if we assume arguendo that Petitioner established a prima facie case of reprisal and discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Petitioner was terminated from his position due to his behavior and actions in the workplace. We find that Petitioner failed to present any evidence which suggests that discriminatory animus was involved in the decision to remove him.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__4/16/15________________
Date
2
0320140052
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013