0320170017
03-02-2017
Vince D.,1 Petitioner, v. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vince D.,1
Petitioner,
v.
David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320170017
MSPB No. DE-0752-16-0218-I-1
DECISION
On December 5, 2016, 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 reasons listed below we CONCUR with the MSPB's decision which found that Petitioner did not demonstrate that he was subjected to discrimination based on his sexual orientation when he was removed from his position.
ISSUE PRESENTED
The issue presented in this case is whether the MSPB's final order correctly determined that Petitioner was not subjected to sexual orientation discrimination when he was terminated from his position.
BACKGROUND
Petitioner worked as a Housekeeping Aid Supervisor, WS-3566-2, at the Agency's Eisenhower VA Medical Center in Leavenworth, Kansas. Petitioner alleged that the Agency discriminated against him on the basis of his sexual orientation when, effective February 2, 2016, he was separated from his position on two charges: (1) conduct unbecoming a supervisor; and (2) being under the influence of alcohol while on duty.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner did not demonstrate that he was subjected to discrimination based on his sex/sexual orientation. As Petitioner did not appeal the initial decision to the full Board, the decision became final on November 4, 2016. The MSPB AJ noted that the Commission, in Baldwin v. Department of Transportation, EEOC 0120133080 (Jul. 15, 2015), had recognized sexual orientation discrimination as a form of sex/gender discrimination under Title VII.
The MSPB AJ, citing the MSPB's decision in Savage v. Department of the Army, 122 MSPB 612 (2015), found that Petitioner could establish discrimination by showing that his sexual orientation "was a motivating factor in the contested personnel action, even if it was not the only reason." The MSPB AJ also held that if the Board determined that discrimination was the motivating or real reason for the action, the Board would reverse the removal.
After finding that the Agency articulated legitimate, non-discriminatory reasons for removing Petitioner, namely that he failed to fulfill his supervisory duties, the MSPB AJ found no evidence of discrimination. In this regard, the MSPB AJ noted that Petitioner did not complete his employees' performance appraisals and did not respond truthfully to his supervisor about the status of their completion. Moreover, Petitioner was found to be under the influence of alcohol while on duty and was attempting to sleep in a closet. The Agency noted that Petitioner had been disciplined several times in the past for being under the influence on the job. The MSPB AJ found that Petitioner's arguments to establish pretext were not effective because the employees whom he maintained were treated more favorably than he was were not similarly situated to him because they were not supervisors. The Agency also noted, however, that the employees mentioned were removed as well.
With regard to Petitioner's contention that after management learned of his sexual orientation, he was micromanaged when other supervisors were not, the Agency asserted that Petitioner was micromanaged because he was not completing his duties and because he had been found intoxicated and sleeping while on duty. The Agency noted that Petitioner freely shared his sexual orientation with his colleagues, and that this fact had nothing to do with his termination. Petitioner, according to the Agency, had been given several chances after being found intoxicated on the job previously. Finally, the Agency noted that Petitioner was terminated over one year after he had disclosed his sexual orientation.
Thereafter, Petitioner filed the instant petition. Petitioner asserts, among other things, that he was terminated shortly after he shared his sexual orientation with his supervisor. He maintains that after his disclosure he experienced hostility in the workplace. He contends that prior to his disclosure he did not have a disciplinary record. He also maintains that after his disclosure he was micromanaged.
In response, the Agency, among other things, contends that the record evidence supports the MSPB's decision. The Agency asserts that the decision clearly and thoroughly addresses the relevant material facts contained in the record and correctly determined that there was no discrimination.
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).
As noted above, in finding no discrimination, the AJ relied upon the MSPB's decision in Savage. 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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.
Disparate Treatment
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of sex/sexual orientation discrimination when the Agency removed him. 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.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas. 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 established a prima facie case of discrimination based upon sex/sexual orientation, we find that the Agency articulated legitimate, non-discriminatory reasons for removing him. Petitioner was removed because he did not properly carry out his duties as a supervisor and because of several incidents where he was found to be under the influence of alcohol while on duty. The Agency found that these incidents, along with Petitioner's past disciplinary record, which included prior incidents of intoxication on the job, showed that rehabilitation was unlikely because Petitioner's misconduct continued to occur, and had a negative impact on the critical responsibilities of the Agency.
Additionally, we agree with the MSPB AJ that Petitioner did not show any persuasive evidence that he was removed because of his sexual orientation. While Petitioner disagreed with the Agency's findings, he did not provide any testimony or evidence to show that the Agency's reasons for his removal were pretext for discrimination. With respect to Petitioner's contentions on appeal, we find that he merely reiterated the same contentions that were brought before the MSPB AJ. We find that these concerns were correctly addressed in the MSPB AJ's decision.
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. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the decision to remove him was based on his sex/sexual orientation.
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
_3/2/17_________________
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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