0320120032
07-31-2012
Keith Boothe, Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Keith Boothe,
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320120032
MSPB No. SF0752100993I1
DECISION
On March 8, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect to Petitioner's allegation of reprisal 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.
BACKGROUND
At the time of events giving rise to this appeal, Petitioner worked as a Telecommunications Mechanic, WG-2502-10, at the Agency's Fort Hunter Liggett in California.
On August 2, 2010, Petitioner's First Level Supervisor (S1) issued him a notice of proposed removal for: (1) defiance of authority; (2) failure to maintain access to communication and information systems; and (3) failure to follow proper leave procedures / absence without leave (AWOL). On August 19, 2010, Petitioner's Third Level Supervisor (S3) issued a decision to remove him, effective September 4, 2010.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when he was removed from his position. On May 19, 2011, after a hearing, an MSPB Administrative Judge (MSPB AJ) issued an initial decision sustaining two out of the three charges, finding no discrimination, and upholding the Agency's removal action.
In sustaining the first charge, the MSPB AJ found that Petitioner defied authority on three different occasions. Specifically, the MSPB AJ determined that, on July 26, 2010, Petitioner refused to attend a safety class after being instructed to do so by S1. In addition, the MSPB AJ determined that, on July 26, 2010, Petitioner refused to meet with S1 or take the documents S1 tried to give him. Further, the MSPB AJ determined that, on July 30, 2010, Petitioner called in sick, hung up the phone on S1, and told S1, "You make me sick."
In not sustaining the second charge, the MSPB AJ found that the Agency did not provide Petitioner with minimum due process in connection with the charge. Specifically, the MSPB AJ determined that the Agency did not sufficiently inform Petitioner of the reasons for the charge, thereby denying him a meaningful opportunity to respond prior the removal decision.
In sustaining the third charge, the MSPB AJ found that Petitioner did not submit medical documentation to validate his July 29, 2010 absence on sick leave. Moreover, the MSPB AJ determined that the Agency had informed Petitioner in a July 26, 2010 notice of leave restriction that he was required to provide a medical excuse for each instance of sick leave and could be considered AWOL if he did not do so.
In finding no discrimination, the MSPB AJ determined that Petitioner failed to show that the Agency removed him because of his prior EEO activity. First, the MSPB AJ found that Petitioner established a prima facie case because of the timing of the events: he filed an informal EEO complaint against S1 and S3 in April 2010; they were aware of his EEO activity by June 2010; and they removed him from his position in August 2010. Second, the MSPB AJ found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, the charged misconduct. Third, the MSPB AJ found that Complainant presented no persuasive evidence that his removal was based on his prior EEO activity. Specifically, the MSPB AJ determined that S3's 2009 statement, "Well, we have to have someone that can keep an eye on [Petitioner]," did not reflect retaliatory animus because it occurred before Petitioner had engaged in any protected activity. In addition, the MSPB AJ determined that the several erroneous actions the Agency took in connection with Petitioner's removal were mistakes rather than retaliation, since the Agency had made similar errors prior to his protected activity.1 Finally, the MSPB AJ found that Petitioner provided no additional circumstantial evidence of retaliation.
Petitioner filed a petition for review by the full Board, but his petition was denied. Petitioner then filed the instant petition and requested that the Commission review the MSPB's final decision on his discrimination claims.
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).
Upon review of the record, we concur with the MSPB's finding of no discrimination. As an initial matter, we observe that Petitioner did not specifically challenge any part of the MSPB's decision in his petition to the Commission.
Assuming, arguendo, that Petitioner established a prima facie case of discrimination on the basis of reprisal, we agree with the MSPB that the Agency articulated a legitimate, nondiscriminatory reason for his removal. Specifically, management officials testified that Petitioner engaged in misconduct that included defying authority, failing to maintain access to communication and information systems, and failing to follow proper leave procedures / AWOL.
Because the Agency articulated a legitimate, nondiscriminatory reason for his removal, the burden shifts to Petitioner to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for reprisal discrimination. Typically, pretext is proved through evidence that the agency treated the employee differently from similarly situated employees or that the agency's explanation for the adverse action is not believable. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at 8-II-E.2. (May 20, 1998).
Here, we agree with the MSPB that Petitioner failed to demonstrate that, more likely than not, the Agency's reasons were pretextual. For example, the record contains no evidence that the Agency treated Petitioner differently from other employees (without prior EEO activity) charged with similar misconduct. In addition, Petitioner has not shown that the Agency's removal for his removal is not believable. The Agency has consistently stated, as evidenced by the testimony of management officials and the language in the notice of proposed removal, that Petitioner's removal was based on his misconduct in July 2010. We note that, at all times, Petitioner retains the burden of persuasion, and that it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 518 (1993). We agree with the MSPB that Petitioner has not done so here. Based on the above, we agree with the MSPB that Petitioner has not shown that the Agency subjected him to reprisal discrimination when it removed him from his Telecommunications Mechanic position.
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__7/31/12________________
Date
1 The MSPB AJ noted that the Agency's erroneous actions included proposing Petitioner's removal for AWOL arguably prior to the due date for his medical documentation, failing to provide him with minimum due process in the second charge, and considering a prior five-day suspension that was not final in determining the penalty. The MSPB AJ found that the Agency had similarly suspended Petitioner without due process on March 29, 2010, which was prior to his protected activity.
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0320120032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120032