Arthur F.,1 Petitioner,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 15, 2019

2019005977 (E.E.O.C. Nov. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Arthur F.,1
Petitioner,

v.

Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Petition No. 2019005977

MSPB No. DA-0752-19-0124-I-1

DECISION

On August 5, 2019, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
For the following reasons, we CONCUR with the MSPB’s ultimate decision that Petitioner did not
establish that the Agency discriminated against him.

BACKGROUND

At the time of events giving rise to this matter, Petitioner worked as a Supervisory Criminal
Investigator, GS-1811-15, at the Agency’s Office of Professional Responsibility (OPR) in San
Antonio, Texas. On December 17, 2018, Petitioner discussed his performance time-off and cash
awards with his second-level supervisor, the Special Agent in Charge (SAC). Petitioner then sent
the SAC an email asserting that the performance award he received was lower than the previous
year’s award “due to reprisal,” that the SAC was “doing [the Assistant Director’s] bidding in
reprisal against” Petitioner, and that he had “had enough of this harassment and discrimination.”

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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He ended the email by stating, “Something has to give.” The SAC replied, “Your verbal outburst,
pointing at me and immediate departure from my office during our discussion . . . was
inappropriate.” He asserted that he was not aware that the Assistant Director was “reprising
against” Petitioner and stated, “I am offended that you would assert that I’m doing ‘[the Assistant
Director’s] bidding’ in reprising against you.” Stating that Petitioner’s “latter statement is deemed
a threat,” the SAC ordered Petitioner to take administrative leave for the remainder of the day.
Petitioner responded that the SAC was trying to “cover up” Petitioner’s reprisal allegation, the
SAC replied that Petitioner was “speaking in a very inaccurate tone,” and Petitioner responded,
“The truth will come out in the EEO I am filing.”

By letters dated December 20, 2018, the SAC temporarily suspended Petitioner’s authorization to
carry an Agency-issued firearm and placed Petitioner in a paid, non-duty status (administrative
leave), effective December 17, 2018. On December 22, 2018, the Division Chief issued Petitioner
a Furlough Notice placing him in a non-pay, non-duty furlough status. The Notice stated that, in
the absence of a fiscal year 2019 appropriation, the Agency could not incur financial obligations
except for the performance of “excepted activities.” According to the Notice, the Agency placed
Petitioner in a furlough status because he was “not engaged in an excepted function.” The Agency
issued Petitioner a second Furlough Notice on January 22, 2109. He returned to work on February
14, 2019 and received retroactive pay and benefits.

On January 28, 2019, Petitioner filed a mixed-case appeal alleging that the Agency discriminated
against him based on disability and in reprisal for prior protected EEO activity when it placed him
in a furlough status. Following a hearing, an MSPB Administrative Judge (AJ) dismissed the
appeal as moot. She found that Petitioner had “received all the relief to which he is entitled”
because he “received pay and benefits for the period he was in furlough status and he has not
established his affirmative defenses.”

The AJ concluded that the Agency articulated a legitimate, nondiscriminatory reason for
furloughing Petitioner. In that regard, the AJ noted that the Agency furloughed Petitioner because
“he was not performing excepted activities at the time of the lapse in appropriations.”

Further, the AJ found that Petitioner did not show that the Agency discriminated against him in
reprisal for protected EEO activity. She noted that Petitioner “was the only GS-1811 Criminal
Investigator in OPR who was furloughed.” She also noted, however, that “it is undisputed that as
of December 21, 2018, [Petitioner] was the only OPR employee who was on administrative leave
following revocation of his authority to carry a firearm and his badge and credentials.”
Accordingly, the AJ concluded that Petitioner was not similarly situated to other GS-1811
Criminal Investigators whom the Agency did not furlough. To the extent that Petitioner argued
that he would not have been furloughed if the SAC had not placed him on administrative leave,
the AJ credited the SAC’s testimony that he placed Petitioner on administrative leave because of
Petitioner’s conduct during the December 17, 2018, meeting about his performance awards.2

2 In her decision, the MSPB AJ noted that Petitioner had appealed his December 17, 2018,
placement in a paid, non-duty status and that the MSPB had dismissed the appeal for lack of
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The AJ similarly found that Petitioner did not establish that the Agency subjected him to disability-
based discrimination. She concluded that Petitioner did not show that the SAC perceived him as
having an impairment. Further, even assuming that Petitioner established that Agency officials
regarded him as having a substantially limiting impairment, the AJ found that Petitioner did not
prove that the Agency intentionally discriminated against him on the basis of disability.

In finding no discrimination on the basis of disability or reprisal, the 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 (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.

On July 9, 2019, the AJ’s initial decision became the MSPB final decision. Petitioner then filed
the instant petition. The parties raise no arguments regarding the petition.

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 analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner’s claims of discrimination
based on disability and reprisal. We will analyze this case according to the McDonnell Douglas
paradigm. We find, however, that MSPB AJ correctly determined that Petitioner did not establish
that the Agency discriminated against him as alleged.

To prevail in a disparate-treatment claim, Petitioner must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas. 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 Corp. 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.

jurisdiction. MSPB Docket No. DA-3443-19-0125-I-1 (Mar. 4, 2019). That matter is not before
us in this petition, and we make no finding with respect to Petitioner’s placement in non-duty
status.
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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). 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 explanation is unworthy of credence or that a discriminatory reason more likely
motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

We assume, for purposes of analysis only and without so finding, that Petitioner has established
prima facie cases of discrimination based on disability and reprisal. The Agency has articulated a
legitimate, nondiscriminatory reason for its actions. As the Division Chief explained in the
Furlough Notice, the Agency placed Petitioner in a non-pay, non-duty furlough status because
there was a lapse in appropriations, the Agency could not incur financial obligations except for the
performance of excepted activities, and Petitioner was not performing an excepted function at the
time of the furlough.

Petitioner has not shown that the articulated reason is a pretext for discrimination. He has not
shown that the reason is unworthy of credence or that discriminatory animus more likely motivated
the Agency’s action. The record establishes that Petitioner, who was in a paid, non-duty status at
the time of the furlough, could not perform excepted activities. We find, therefore that Petitioner
has not proven that the Agency discriminated against him on the basis of disability or in reprisal
for prior protected EEO activity when it placed him in a furlough status.

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.

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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

November 15, 2019
Date