03a10027
02-15-2001
Victor Luna , Petitioner, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Victor Luna v. Department of the Air Force
03A10027
February 15, 2001
.
Victor Luna ,
Petitioner,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Petition No. 03A10027
MSPB Docket No. DA-0351-00-0031-I-1
DECISION
INTRODUCTION
On November 26, 2000, Victor Luna (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (the Commission) for
review of the final order of the Merit Systems Protection Board (MSPB)
issued October 27, 2000, concerning his claims of discrimination based
on reprisal (prior EEO activity) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The petition
is governed by 29 C.F.R. � 1614.303 et seq. The MSPB found that the
agency had not engaged in discrimination as alleged by petitioner.
For the reasons that follow, the Commission concurs with the decision
of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated him based on reprisal when
it removed him from his position as part of a Reduction-in-Force (RIF)
constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives and is supported by the record as a
whole.
BACKGROUND
According to the record, in a memorandum dated May 7, 1999, the agency
notified petitioner<1> that, in accordance with a decision by the Base
Closure and Realignment Commission (BRAC), his position was abolished
and he would be removed from employment effective September 11, 1999,
unless the agency could locate alternative employment for him at the
facility. Petitioner filed an appeal with the MSPB alleging unlawful
employment discrimination on the bases of reprisal (prior EEO activity).
Petitioner stated that the agency knew that he had seven individual
EEO complaints and that he was a lead complainant in six class action
complaints. He stated further that incorrect use of the agency's RIF
system caused his removal.
The agency stated that the propulsion-business workload that the agency
facility performed was going to either a private or a public contractor,
therefore, a RIF was approved and implemented. Based on the record,
the RIF required management to identify positions to be abolished
based on workload. Management then had to attempt to locate alternate
positions for the employees of the abolished positions. Placement in
an alternate position was based on an employee's retention standing,
which considered his/her years of Federal service and his/her last
three performance appraisals. The agency indicated that it was unable
to place petitioner in an alternate position because he was displaced
by persons with higher retention standing, typically veterans.
After a hearing on the matter, an MSPB Administrative Judge (AJ) issued
an initial decision finding that the agency articulated a legitimate,
nondiscriminatory reason for its action and that petitioner failed
to establish that the agency's articulated reason was pretextual.
The AJ affirmed the agency's action. Petitioner subsequently filed a
petition for review to the Board, which was denied. This petition to
the Commission followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on reprisal constitutes
a correct interpretation of any applicable law, rule, regulation or
policy directive and whether said decision is supported by the evidence
in the record as a whole. 29 C.F.R. � 1614.305(c).
When a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the petitioner to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the petitioner
must then prove, by
a preponderance of the evidence, that the legitimate, nondiscriminatory
reason articulated by the agency is merely pretext for discrimination.
McDonnell Douglas, 411 U.S. at 804.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must show: (1) that he engaged in
prior protected activity, e.g., participated in an EEO proceeding; (2)
that the responsible management official (RMO) was aware of the protected
activity; (3) that he was subsequently disadvantaged by an adverse
action; and, (4) that there is a causal link between the protected
activity and the adverse employment action. Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F.Supp. 318, 324 (D. Mass),
affirmed, 545 F.2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge,
759 F.2d 80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of
Kansas, Inc., 683 F.2d 339, 343 (10thCir. 1982), cert. denied, 459
U.S. 1071 (1982). The causal connection may be shown by evidence that
the adverse action followed the protected activity within such a period
of time and in such a manner that a reprisal motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). "Generally, the Commission has held that nexus may
be established if events occurred within one year of each other." Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
Between March 1996 and January 1998, petitioner filed seven EEO complaints
alleging that the agency took adverse action against him as an individual.
In 1999, petitioner filed six EEO complaints as a member of a class
action. The record revealed that the Personnel Specialist who helped
to implement the RIF was aware of petitioner's EEO activity prior to the
incidents at issue here. Based on the foregoing, petitioner established
a prima facie case of retaliatory discrimination.
The burden now shifts to the agency to articulate some legitimate,
nondiscriminatory reason for its challenged action. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). The agency stated that
a facility-wide RIF was implemented, that petitioner's position was
abolished, and that petitioner was displaced by employees with higher
retention standing for alternate positions.
Because the agency was successful in satisfying its burden, the petitioner
must prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804. Petitioner may do this in one
of two ways, either directly, by showing that a discriminatory reason
more likely motivated the agency, or indirectly, by showing that the
agency's proffered explanation is unworthy of credence. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the petitioner that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Petitioner
indicated that the agency's actions were retaliatory because it was
aware of his prior EEO activity and it did not properly implement the
RIF with regard to his employment. Petitioner's mere assertions are
insufficient to establish pretext.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board'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.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 15, 2001
__________________
Date
1Petitioner was a Sheet Metal Worker Supervisor, WS-08.