0320170055
12-05-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bret B.,1
Petitioner,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Petition No. 0320170055
MSPB No. DC0752170094I1
DECISION
On September 11, 2017, 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 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 finding that Petitioner did not establish that the Agency discriminated against him as alleged.
BACKGROUND
Petitioner worked as a Patent Examiner at the Agency's Technology Center in Alexandria, Virginia. Petitioner alleged that the Agency discriminated against him on the bases of disability, and reprisal for prior protected EEO activity under the Rehabilitation Act when effective September 29, 2016, the Agency removed him for improper conduct for 14 specifications falling under the categories of failure to follow supervisory instructions, and violations of the Agency's workplace violence policy. The 14 specifications included allegations that he repeatedly failed to follow his supervisor's direction to contact him to discuss cases when he arrived in the office; failure to attend a mandatory meeting; and several instances of exhibiting inappropriate behavior in response to supervisory directives.
Petitioner did not request a hearing, and after reviewing the parties' responses at the close of a record conference an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency establish its charge of improper conduct and that the penalty to remove the Petitioner fell within the tolerable limits of reasonableness. Additionally, the AJ found that Petitioner was unable to establish his affirmative defenses of discrimination based on disability, and reprisal for prior EEO activity, or that he was subjected to discriminatory harassment because he failed to show by preponderant evidence that the Agency's decision to remove him was motivated by discriminatory animus.2 Additionally, the AJ found that Petitioner failed to prove that the Agency did not attempt to provide him with a reasonable accommodation. The AJ found that the Agency presented legitimate non-discriminatory reasons for the removal. Petitioner subsequently filed the instant petition.
In sum, Petitioner argued that the AJ erred in not finding that the Agency failed to provide him with a reasonable accommodation when it declined to grant his request to hold all meetings after noon, to grant him a new supervisor, and that this excused his misconduct. In response, the Agency contends that Petitioner has no basis to challenge the AJ's factual findings that he committed the misconduct in question, or that the penalty of removal was within the range of reasonable penalties, that he was reasonably accommodated, and that there was no evidence of discrimination, retaliation, or a hostile work environment. The Agency stated that Petitioner only denies responsibility for the misconduct, not committing the acts.
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).
At the outset, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of disparate treatment based of disability and reprisal discrimination. We, however, we will analyze this case according to the McDonnell Douglas paradigm.
Upon review of the record, the Commission finds that even assuming, arguendo, that Petitioner established a prima facie case of discrimination based on disability and reprisal, the Agency provided legitimate, non-discriminatory reasons for his removal - namely that he exhibited improper conduct in the workplace, specifically falling under the categories of failure to follow supervisory instructions, and violations of the Agency's workplace violence policy. We find that the AJ correctly determined that Petitioner did not establish that the Agency discriminated against him as alleged.
Additionally, we find that the Agency effectively accommodated Petitioner by providing him with an ergonomic keyboard, standing desk, footstool, and a flex-time schedule. With respect to Petitioner's request that meetings and mentoring sessions occur after noon, we note that although there was no medical support for such a request, the Agency agreed that Petitioner's supervisor and mentor would, when possible, schedule meetings for times after 12:00 p.m. Finally, the Commission has long held that an employee is not entitled to a new supervisor as a form of reasonable accommodation.
Regarding Petitioner's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Petitioner's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Petitioner did not establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate finding that Petitioner did not establish that his removal was based on disability discrimination or in reprisal for prior protected EEO activity.
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
_12/5/17_________________
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.
2 In finding no discrimination based on 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 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.
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