03a00085
02-16-2001
James H. Belcher, Petitioner, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
James H. Belcher v. Department of the Air Force
03A00085
02-16-01
.
James H. Belcher,
Petitioner,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Petition No. 03A00085
MSPB No. DA 0432-98-0091-B-1
DECISION
On April 19, 2000, James H. Belcher (hereinafter referred to
as 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 or Board) dated March 16,
2000, concerning an allegation of discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The petition is governed by the provisions of
the Civil Service Reform Act of 1978 and EEOC Regulations, 29 C.F.R. �
1614.303 et seq. The MSPB found that the Department of the Air Force
(hereinafter referred to as the agency) did not engage in discrimination
as alleged by petitioner. For the reasons that follow, the Commission
concurs with the Board's decision.
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based on
race/color (black) and age (DOB June 29, 1938) and in reprisal for
previous EEO activity when he was removed effective October 18, 1997,
constitutes a correct interpretation of the applicable laws, rules,
regulations, and policy directives and is supported by the record as a
whole.
On November 20, 1997, petitioner appealed to the MSPB alleging,
inter alia, discrimination when he was removed from his position as
a Medical Technician at the agency's Aerospace Medicine Directorate,
Brooks AFB (Texas).<1> On September 30, 1998, a MSPB Administrative
Judge (AJ) issued an Initial Decision, sustaining the agency's action
and finding that the agency did not discriminate against petitioner.
Petitioner filed a petition for review by the full Board, and, in an
Opinion and Order dated May 18, 1999, the matter was remanded to the AJ.
The Board directed the AJ to determine whether the agency was tardy in
complying with her discovery order and, if so, to consider additional
evidence from petitioner. In her second ID, dated August 2, 1999,
the AJ found that the agency's compliance with her discovery order
was untimely; after review of petitioner's supplemental evidence, she
found that petitioner had failed to establish his affirmative defenses
of discrimination. Petitioner again sought review by the full Board,
which affirmed the AJ's decision.
The AJ found that the agency showed that petitioner failed to meet a
critical element (CE) of his performance plan, that the standards for
performance had been communicated to him, and that he had been given a
reasonable opportunity to improve his performance.<2> Petitioner was
charged with unacceptable performance for CE-1E, which required him
to accurately perform analyses of urine samples. Because of errors,
petitioner had been decertified in November 1996 and February 1997, and,
after February 1997, he had been unable to achieve certification due
to further errors during his recertification testing. Thereafter, he
received a rating of "unacceptable" for CE-1E and was placed on a 60-day
PIP, during which he failed to renew his certification on two occasions.
Upon remand by the Board, petitioner was afforded the opportunity to
submit supplemental evidence in support of his affirmative defenses of
discrimination. In its Opinion and Order, the Board informed petitioner
that, with regard to his contentions and statements with regard to
certain instances of laboratory errors:
his unsworn and uncorroborated statements...may be insufficient to
establish the facts of these alleged incidents. In the absence of
documentary evidence, [petitioner] should present his affidavit and the
affidavits of other witnesses to the incidents. (Opinion and Order,
p. 7.)
Further, noting that petitioner had previously failed to provide any
documentary evidence or affidavits in support, the AJ advised petitioner
that probative evidence was necessary to support his affirmative defenses
of discrimination and should consist of documentary evidence and/or
sworn statements from himself or others. Nevertheless, petitioner's
submission consisted solely of his unsworn and uncorroborated statements
repeating his claims of disparate treatment based on race/color, age,
and reprisal. The AJ concluded that petitioner failed to establish
a prima facie case of discrimination by showing that he was treated
differently or more harshly than others. As to his claim of reprisal,
she found that petitioner failed to show that his prior protected activity
was the motivating factor in the agency's action. She found therefore
that the agency did not discriminate against petitioner.
In his petition to the Commission, petitioner repeats his contentions
that other employees received less severe recertification plans, that
errors were made by others and assigned to him, that his performance
was excellent, and that his superiors were incompetent. Petitioner's
submission consisted of his unsworn statement of contentions and documents
already in the record or not relevant to the instant matter. For example,
he contends that another Medical Technician was improperly certified
but, other than the documents showing his certification, petitioner has
presented nothing in support of his contention that the certification
procedure was improper.
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination constitutes a correct
interpretation of applicable laws, rules, regulations, and policy
directives and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). After considering petitioner's contentions and
thoroughly reviewing the record, the Commission concurs with the MSPB,
finding that the agency did not discriminate against petitioner.
Petitioner has claimed discrimination based on race/color and age and in
reprisal for previous EEO activity. In general, claims alleging disparate
treatment are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Loeb
v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). Usually, petitioner
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). Next, the agency
must articulate an explanation for its actions, and, if successful, the
burden returns to the petitioner to demonstrate by a preponderance of the
evidence that the agency's action was based on prohibited considerations
of discrimination, that is, its articulated reason for its action
was not its true reason but a sham or pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Where, as here, the agency articulates legitimate, nondiscriminatory
reasons for its actions, the factual inquiry can proceed directly
to the third step to consider whether petitioner has demonstrated,
by preponderant evidence, that the agency's action was pretextual.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-14 (1983). In the matter before us, we find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The agency stated that it removed petitioner from his position due to
unacceptable performance in CE-1E. In support, the agency provided
documentary evidence and explained that petitioner, having failed to
regain his certification, was removed because he was unable to perform
the duties of his position. Further, petitioner was afforded a period
of opportunity to improve his performance and regain his certification,
but he failed to successfully do so.
The burden now returns to petitioner to demonstrate by a preponderance of
the evidence that the agency's reasons were not the true reasons for its
actions or that they were based on prohibited factors of discrimination or
discriminatory animus. See Reeves v. Sanderson Plumbing Products, Inc.,
� U.S. �, 120 S.Ct. 2097 (2000). Petitioner contended that he was treated
more harshly than others, in that, errors of others were ascribed to him,
the PIP was not workable, his recertification plan was more difficult than
the plans of others, and that his performance was excellent. None of
these contentions, however, were supported by any probative evidence in
the record and, without more, do not support a demonstration of pretext.
To establish a prima facie case of reprisal discrimination, appellant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he
was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). 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. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Even assuming that petitioner established a prima facie case of reprisal
discrimination, as stated above, the agency articulated legitimate,
nondiscriminatory reasons for its actions in response to which petitioner
failed to demonstrate pretext.
For the above reasons, we find that the agency did not discriminate
against petitioner and concur with the decision of the MSPB.
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
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.
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
___02-16-01____________
Date
1Petitioner did not request a hearing.
2The events preceding his removal were the subject of four EEO complaints
alleging race/color and age that were consolidated for hearing before
an EEOC Administration Judge (EEOC AJ). On June 14, 1999, the EEOC AJ
issued a decision finding that the agency had articulated legitimate,
nondiscriminatory reasons for its action and that petitioner had failed
to demonstrate pretext. This decision was affirmed by the Commission.
EEOC Appeal No. 01A00167 (March 29, 2000), recon. den., EEOC Request
No. 05A00724 (June 22, 2000). The events at issue included: a
non-selection in April 1996; an "excellent," rather than outstanding,
rating in June 1996; notices of decertification in November 1996 and
February 1997; failed recertification in March 1997; an "unacceptable"
rating in March 1997; and placement on a performance improvement plan
in April 1997.