0320150043
02-19-2016
Henry S.,1 Petitioner, v. Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Henry S.,1
Petitioner,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Petition No. 0320150043
MSPB No. DC-0752-12-0189-B-1
DECISION
On March 11, 2015, 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 stated below, the Commission concurs with the MSPB's finding that Petitioner did not demonstrate that he was subjected to discrimination.
BACKGROUND
Petitioner worked as a Drug Testing Technician (DTT), GS-6, at the Agency's Illegal Substance Collection Unit (ISCU) facility in Washington, D.C. The Agency removed Petitioner on three charges: (1) mishandling of confidential Agency information; (2) engaging in disruptive conduct; and (3) failure to cooperate during an Agency investigation. Specifically, on April 30, 2007, Petitioner was found to have faxed confidential offender information to a nonofficial, nongovernment number. Petitioner admitted that he had sent the materials to his home to determine how computers work. The Agency maintained that Petitioner had been trained regarding the handling of confidential documents and knew that faxing documents to his home was a violation. With regard to charge number two, while visiting the EEO office, it was alleged that Petitioner's behavior with the EEO Specialist became abrasive, demanding, and disrespectful. As a result of Petitioner's demeanor, the EEO Specialist requested assistance from Security personnel to escort him from the premises. Regarding charge number 3, the Petitioner failed to schedule an interview through his attorney and he lead the Agency to believe that he had representation when he did not. Based on the charges, the Agency determined that Petitioner should be dismissed from his position. Petitioner alleged that the Agency subjected him to a hostile work environment, discriminated against him on the bases of sex (male) and subjected him to reprisal for prior protected EEO activity when he was removed from his position, effective May 16, 2008.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision sustaining the Agency's charges but not all of the specifications. The AJ found that Petitioner failed to establish his affirmative defenses of retaliation for prior EEO activity, sex discrimination based on disparate treatment, hostile work environment, harmful error, and violation of due process. Further, as a result of the Agency not responding to discovery requests, the AJ sanctioned the Agency by not allowing it to present further evidence. Thereafter, Petitioner sought review by the Board.
The Board found that the AJ properly sustained the Agency's charges. Further, with regard to Petitioner's discrimination and retaliation claims, the Board agreed with the AJ that the Agency established that it had a legitimate nondiscriminatory reason for Petitioner's removal and that the reason for doing so was neither false nor pretextual. The Board also agreed that Petitioner failed to establish that the Agency subjected him to a hostile work environment or that it committed harmful error or violated his due process in the events at issue in this matter.
Petitioner argued to the Board that the AJ erred in not sanctioning the Agency more severely. The Board found however that the AJ's sanctions against the Agency were adequate as Petitioner was not harmed by the Agency's discovery delays. The Board held that it was within the AJ's discretion to forbid the Agency from admitting any further documents, and while Petitioner wanted the AJ to issue an adverse inference against the Agency for its noncompliance, the sanction issued by the AJ was appropriate. Further Petitioner alleged that the Agency failed to provide two EEO investigation reports, the Board however found that Petitioner had indicated that he had been provided with the information that he needed. The Board concluded that Petitioner did not establish any basis for granting the petition for review. Therefore, the Board affirmed the initial decision.
Petitioner then filed the instant petition. On appeal, Petitioner provided a copy of his EEOC complaint against the Agency, EEOC Hearing No. 570-2007-00846X, in which he claimed that the Agency had discriminated against him on the bases of sex and in reprisal for prior protected EEO activity when he was subjected to harassment and a hostile work environment. Among the incidents listed by Petitioner as part of his harassment claim were: his supervisor made derogatory, threatening, and intimidating statements and subjected him to sexual harassment; in November 2006, he was denied access to his EEO file; he was placed in Absent Without Leave (AWOL) status in January 2007; he was placed on administrative leave on March 23, 2007; on January 18, 2008, he was issued a Notice of Proposed Removal; and in March 2006, he was suspended for allegedly sexually harassing another Agency employee.
In that case, Petitioner requested a hearing before an Equal Employment Opportunity Commission's Administrative Judge (AJ). Following the Agency's failure to show good cause as to why it had not complied with two AJ Orders to produce the Report of Investigation, the AJ issued a decision in which he sanctioned the Agency for its actions in the EEO complaint process, and entered a default judgment in favor of Petitioner. In the decision awarding relief to Petitioner, the AJ found that Petitioner had only established an entitlement to relief on his claims that he was discriminatorily suspended in March 2006 and that he was suspended for two weeks in February 2007. The AJ also awarded relief for compensation lost when Complainant was put on AWOL on January 4, 2007. Petitioner was sent to MSPB to address his mixed case, i.e., the removal action. The Commission affirmed the default judgment in EEOC Appeal No. 0120103671. The Commission upheld the AJ's determination that the record did not contain sufficient evidence to satisfy the basic elements of a claim of hostile work environment harassment, and that the removal action claim was properly before the MSPB.
CONTENTIONS ON APPEAL
In the current appeal, Petitioner argues that the default judgment issued by the EEOC AJ should have been recognized by the MSPB AJ. He argues that the "Cat's Paw" theory should apply in this case. Petitioner maintains that the MSPB AJ failed to properly analyze his disparate treatment claim based on sex, retaliation, and pretext. Petitioner also maintained that the AJ erred regarding his wrongful termination charge. Petitioner indicates that the Agency manipulated the 2007 ROI thus producing an incomplete ROI for the MSPB.
In response, the Agency contends that the MSPB properly found that Petitioner was not subjected to harassment, discrimination, and/or reprisal when he was removed from the Agency. The Agency also maintains that Petitioner currently has an EEO case that addresses the same issues in this appeal.
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).
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Petitioner bears the ultimate responsibility to persuade the fact finder 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).
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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).
Petitioner can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Petitioner may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 11384139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Petitioner alleged that he was subjected to a hostile work environment. To establish a claim of harassment Petitioner must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In the instant case, we agree with the MSPB's finding that Petitioner did not demonstrate that he was subjected to a hostile work environment, reprisal, or discrimination. We find that even if we assume arguendo that Petitioner established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated from his position because he violated confidentiality procedures; he acted aggressively toward an EEO Counselor and had to be escorted out of the building by security; and he did not fully cooperate in his own investigation. The Commission notes that Petitioner does not deny that he engaged in the conduct at issue. We find that Petitioner has not provided any persuasive evidence which suggests that the Agency's reasons for his removal were pretext for discrimination.
Further, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Petitioner's claim of 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 failed to establish that his removal by the Agency was motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).2
With respect to Petitioner's contentions on appeal, the Commission finds no persuasive argument that would indicate that the MSPB final decision was incorrect. Accordingly, we agree with the MSPB that Petitioner did not demonstrate that he was subjected to discrimination, reprisal, and/or hostile work environment.
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 (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 Mdden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/19/16________________
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 that Petitioner did not establish his claim that he was subjected to a hostile work environment, we only focused on the matter that was before the MSPB, i.e., the removal action, not the incidents which were presented to the EEOC AJ and addressed in EEOC Appeal No. 0120103671. We will not readdress those matters here.
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0320150043