0320080030
11-06-2008
Michael Dwyer, Petitioner, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Michael Dwyer,
Petitioner,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080030
MSPB No. CB-7121-07-0024-V-1
DECISION
On February 4, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of an Opinion and
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.
Petitioner filed a grievance alleging that he was discriminated against
based on reprisal for prior protected EEO activity under Title VII when
he was terminated by letter dated February 22, 2006. He is a computer
specialist serving in a lead position at a help desk with the agency's
Health Administration Center in Denver, Colorado. Petitioner was
removed under charges of misconduct for refusal to carry out proper
orders on September 20 and 26, 2005, and failure to follow instructions
for incidents on October 6, 11 and 12, 2005. Following an arbitration
hearing, on June 27, 2007, an arbitrator issued an opinion and award
not sustaining the charges and reversing the removal. The arbitrator,
however, found no reprisal discrimination.
Petitioner filed an appeal with the MSPB. On appeal, he explicitly did
not challenge the factual findings of the arbitrator. Instead, he argued
that the arbitrator made errors of law in finding no reprisal. The MSPB's
Opinion and Award disagreed, and found no reprisal. It found that even
if petitioner established a prima facie case of reprisal discrimination,
as argued, he still failed to prove reprisal discrimination. Petitioner
then filed the instant petition.
On September 12, 2005, petitioner was assigned the task of deleting a
mailbox account. There is a short deadline for doing so because leaving
such an account open is considered a security risk. After the deadline
passed, on September 15, 2005, the information security officer (ISO)
made an electronic ticket urgently communicating to petitioner that the
deadline had passed. Petitioner was out for some days. Upon arriving on
September 20, 2005, he immediately put in for leave in the afternoon.
Minutes thereafter, petitioner's supervisor forwarded an e-mail to
petitioner that the supervisor received the previous day from the ISO
asking about the status of deleting the account; she also advised that
the deadline passed. The supervisor asked petitioner to update the
ISO on status and how he planned to handle the matter. A series of
e-mails between petitioner and the supervisor ensued where petitioner
asked for leave and the priority of the assignment, and the supervisor
responded, in effect, that it was his responsibility to timely delete the
account, which she wrote was a simple matter. Hours passed. At noon,
the supervisor denied the leave request, pointing to the account not
being deleted. Petitioner then applied for the leave under the Family
and Medical Leave Act (FMLA). Under a prior arrangement, petitioner
had preexisting approval for FMLA leave.
Meanwhile, petitioner asked his second line supervisor to approve
the leave. Aware of the account deletion issue, and the above ISO's
and immediate supervisor's attention to the matter, on September 20,
2005, at 1:25 PM the second line supervisor gave petitioner a direct
order to complete the deletion, a task she regarded as taking 10 minutes.
Petitioner responded that he had to leave, and the second line supervisor
offered to assist him complete the task. Petitioner left. Because
petitioner asked for his leave in combination with lunch, he could leave
at 1:30 PM, but the second line supervisor believed the leave started at
2 PM. The second line supervisor did not disapprove the leave request.
In not sustaining the charge, the arbitrator found that while the
second line supervisor believed petitioner's leave started at 2 PM,
the order was improvidently given because his leave started at 1:30 PM,
and there was insufficient time to delete the account before then since
it would take at least 10 minutes to close the account. The arbitrator
also commented that the agency could have informed petitioner early on
that the leave approval was contingent on finishing closing the account.
The arbitrator added that if the closing matter was a security risk, it
could have been reassigned to someone the day before, a day petitioner
was not working.
Next, petitioner acknowledged a ticket to create an account on September
8, 2005. This is normally time sensitive because a new person coming on
board needs computer account access to do their work. In an electronic
communication on September 13, 2005, petitioner's immediate supervisor
notified petitioner in a specified manner that he made several errors
and did not take several steps to create the account, and that five
days already passed. After petitioner notified his supervisor that he
completed a few steps, on September 23, 2005, the supervisor advised him
that the account needed to be created by 1 PM that day. With the task
still not completed, on September 26, 2005, at 6:07 AM the supervisor
entered a direct order on the assignment ticket for it to be done by 7:30
AM that morning, and at 6:10 AM placed a print out of this along with a
handwritten note in petitioner's work area. Soon thereafter, petitioner
replied that this was not enough time to complete the assignment, and
he would like to ask a co-worker for guidance. The supervisor replied
that she already explained things, recapped, and offered to assist with
other questions. Petitioner asked a co-worker for assistance and did
not complete the assignment until 10:30 AM. In not sustaining the charge,
the arbitrator found that the agency failed to show a deliberate refusal
to follow a direct order, rather, it showed a performance problem for
which petitioner was under a performance improvement plan (PIP).
The arbitrator found that petitioner did not dispute that it took
him longer to accomplish help desk tasks than others. His supervisor
testified that account terminations take others a half hour at the most,
but it took petitioner four or more hours to get this type of work done.
By the time petitioner was given the direct order to complete deletion of
the account, some steps had already been taken. Petitioner's immediate
supervisor wrote that petitioner claimed it took 2.4 hours to complete
the task the next day, and he made a minimal effort. She testified
that petitioner always had to have supervisory interventions to remind
him that he had work to do because he very frequently did not timely
complete assignments. The arbitrator recited an agency investigative
finding that the average time for others to create an account was 1.23
hours, but it took petitioner 6.58 hours to do this. The arbitrator
recounted that the deciding official on the removal, the Deputy Chief
Business Officer, in his interview with petitioner asked him why his
performance of tasks was documented to take 4 to 5 times as long as
other employees. The arbitrator found that petitioner's immediate
supervisor believed petitioner was disinclined to work.
The arbitrator found that if there was a concern that the petitioner
was not utilizing his best efforts, it was generally not framed in the
context of a refusal to follow an order. However, the arbitrator found
that concerns about petitioner's performance undercut a finding that
the agency removed him in reprisal for EEO activity.
Regarding failure to follow instructions, the agency charged that on
three dates where leave was approved for petitioner, he failed to enter
on an electronic calendar for co-workers that he would not be available
to answer telephones or respond to user requests. Petitioner testified
that he e-mailed his co-workers of his absences. The arbitrator found
that the mere existence of omissions on the electronic calendar, without
more, do not show "deliberate" conduct.
On petition, petitioner argues that he established reprisal
discrimination.
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).
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. We agree with the finding of the MSPB that even if
petitioner established a prima facie case of reprisal discrimination,
he still failed to prove reprisal. We find that the agency was more
likely motivated by its view that petitioner was a poor performer with
poor motivation than reprisal for prior EEO activity. In making this
finding, we take note that the arbitrator made his findings following a
hearing, was able to observe the witnesses, and found reprisal was not
the motive.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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 (Z1008)
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
November 6, 2008
__________________
Date
2
0320080030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0320080030