03A20070
08-08-2002
Keith W. Edwards, Petitioner, v. John Ashcroft, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Keith W. Edwards v. Department of Justice (Immigration and Naturalization
Service)
03A20070
August 8, 2002
.
Keith W. Edwards,
Petitioner,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Immigration and Naturalization Service),
Agency.
Petition No. 03A20070
MSPB No. AT-315H-99-0695-B-2
DECISION
On June 18, 2002, Keith W. Edwards (�petitioner�) filed a timely
petition with the U.S. Equal Employment Opportunity Commission (�EEOC�
or �the Commission�) asking for review of a Final Order issued by the
Merit Systems Protection Board (�the 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 (�the Rehabilitation Act�), as amended,
29 U.S.C. � 791 et seq. Petitioner, a District Adjudications Officer
with the Department of Justice (Immigration and Naturalization Service)
(�the agency�), alleged that the agency discriminated against him on
the bases of race (African-American), sex (male), disability (neck
condition), and reprisal (for allegedly protected activity) when it
terminated him. The agency claimed it terminated him for his inability
to adhere to established office procedures, his failure to follow
supervisory instructions (such as to wear a tie), and his belligerent
and disrespectful conduct.
Petitioner subsequently filed an appeal of this termination action with
the MSPB. An MSPB administrative judge initially dismissed his appeal
for lack of jurisdiction. The MSPB later reversed this ruling, however,
and found that the agency's dismissal of petitioner had violated various
personnel rules unrelated to EEO law. The MSPB thus ordered the agency to
reinstate petitioner and provide him other appropriate relief. The MSPB
simultaneously remanded the case for a hearing on whether the agency's
termination had violated any applicable employment discrimination laws,
as well (as petitioner claimed it had).
The MSPB administrative judge, in a ruling dated March 13, 2001, decided
that the agency had not committed any illegal employment discrimination
under Title VII or the Rehabilitation Act. On May 17, 2002, the full
MSPB denied petitioner's petition for review of this administrative
judge's opinion. Petitioner now is asking EEOC to review this MSPB
denial, and is apparently urging us to find that Title VII and/or the
Rehabilitation Act were in fact violated.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). 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, for
the most part, 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 complaint raises claims of race-based, sex-based,
disability-based, and/or retaliatory disparate treatment. With claims of
this kind, where there is no direct evidence of any illegal motive for
the agency actions in question, an evidentiary �burden of production�
is placed initially on the petitioner to put forth a prima facie case
of unlawful discrimination. The petitioner may do so by presenting
facts which, if unexplained, reasonably give rise to an inference of
discrimination (i.e., that a prohibited consideration was a factor in
the relevant adverse employment actions). If a petitioner successfully
establishes such a prima facie case, the evidentiary burden of production
then shifts to the agency to articulate legitimate, non-discriminatory
reasons for its ostensibly objectionable conduct. If and when the
agency offers such a lawful explanation, the evidentiary burden of
production shifts (one last time) back to the petitioner to show
that the explanation offered is but a pretext for the agency's true,
prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Notwithstanding these shifting burdens of production, however, in
any Title VII or Rehabilitation Act claim of disparate treatment, the
petitioner at all times carries the ultimate burden of persuading the
finder of fact � by a preponderance of (albeit circumstantial) evidence
� that he or she was a victim of intentional discrimination. See, e.g.,
Sweeney, 439 U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at
256; Aikens, 460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507,
511, 518; and Reeves, 530 U.S. at 143. This petitioner has not met
this burden. Even if we assume for argument's sake that he satisfied
his initial obligation to put forth a prima facie case of race-based,
sex-based, disability-based, and/or retaliatory disparate treatment,
the agency responded accordingly. That is, the agency provided various
legitimate, non-discriminatory reasons for terminating him (e.g., he
failed to comport with the agency's dress code by wearing a tie, he
was unprofessional and uncooperative, etc.). In our view, petitioner
failed to prove that these facially legitimate, non-discriminatory agency
explanations were a pretext for any prohibited motivation. In short,
the preponderance of the evidence simply does not support the notion
that petitioner was fired because he is African American, was married
to a White woman, had an alleged disability, and/or had engaged in
ostensibly protected EEO activity. Nor did petitioner establish that
the requirement of wearing a tie denied him a reasonable accommodation
for his alleged disability.
Because the MSPB reached this same conclusion, it is the decision of
this Commission to concur with the MSPB's finding of no discrimination
in this case.
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
August 8, 2002
__________________
Date