Lewis Thurston, Petitioner,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0320070066 (E.E.O.C. May. 8, 2007)

0320070066

05-08-2007

Lewis Thurston, Petitioner, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Lewis Thurston,

Petitioner,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 0320070066

MSPB No. AT-0752-05-0639-I-3

DECISION

On March 26, 2007, 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 alleging a violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

Petitioner alleged that he was discriminated against on the basis of

reprisal for prior protected EEO activity when, effective May 20, 2005,

he was removed from his Purchasing Agent position, GS-6. The record

indicated that petitioner filed had filed a previous EEO complaint

alleging discrimination in violation of the Rehabilitation Act and the

ADEA.

Petitioner filed an appeal from his removal with the MSPB on May 31,

2005. An Initial Decision dismissed the matter on September 14, 2005.

Petitioner refiled his appeal on December 13, 2005. Again, the matter

was dismissed on March 21, 2006, by the MSPB Administrative Judge (AJ),

allowing petitioner to re-file his appeal. On June 20, 2006, petitioner

refiled his appeal. A hearing was held. Thereafter, on October 18,

2006, the MSPB AJ issued an initial decision finding no retaliation.

Petitioner filed a petition for review to the Board. On February 28,

2007, the Board denied the petition for review.

Petitioner then filed the instant petition. In his petition, petitioner

argued that the agency did not consider his request for a reassignment

due to his mental condition in violation to the Rehabilitation Act.

He asserted that the agency received medical documentation regarding

his impairment.

ANALSYS 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).

Claim of Violation of the Rehabilitation Act

We note that petitioner asserted he requested a reassignment as reasonable

accommodation for his mental condition. We note that a thorough review

of the record reveals that petitioner filed his appeal with the MSPB

asserting that the removal action constituted unlawful retaliation based

on his prior EEO complaints. At no point prior to the MSPB hearing

did petitioner raise the issue of denial of reasonable accommodation.

Therefore, the MSPB AJ only addressed petitioner's claim of unlawful

retaliation. Petitioner is advised that on a petition for review,

the Commission is limited to reviewing the MSPB's decision on those

allegations of discrimination which petitioner raised in his appeal to

the Board. See 29 C.F.R. � 1613.414. Therefore, we cannot address his

claim of denial of reasonable accommodation.

Claim of Unlawful Retaliation

A claim of disparate treatment based on indirect evidence is examined

under the three-part analysis first enunciated in McDonnell Douglas

Corporation 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 Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the 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 Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the

third step of the McDonnell Douglas analysis, the ultimate issue of

whether petitioner has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review of the record, we find that the agency provided legitimate,

nondiscriminatory reasons for the removal action. On April 14, 2005,

petitioner was issued a proposed removal charging him with failure

to follow proper leave procedures and failure to follow supervisory

instructions. The agency then issued the final removal action, effective

May 20, 2005, for the same reasons. The agency officials noted that

petitioner had previously received a five-day suspension on September 30,

2004, and a fourteen-day suspension on February 2, 2005. Upon review,

we find that the agency has provided legitimate, nondiscriminatory

reasons for its action. We further determine that petitioner has not

shown that the agency's reasons were pretext for unlawful retaliation.

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 (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

May 8, 2007

__________________

Date

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0320070066

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0320070066