03a00003
12-06-1999
Petitioner, )
Elgin Hunt v. Department of the Air Force
03A00003
December 6, 1999
Elgin Hunt, )
Petitioner, )
) Appeal No. 03A00003
v. ) MSPB No. DA-0752-98-0324-I-1
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
On September 29, 1999, Elgin Hunt (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 the Board) issued August 30, 1999, 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. The MSPB found that the Department
of the Air Force (agency) had not engaged in discrimination as alleged
by petitioner. For the reasons that follow the Commission concurs with
the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the Board's determination that petitioner
failed to prove that the agency discriminated against him based on race,
national origin, and reprisal is supported by the record as a whole.
BACKGROUND
Petitioner was employed in the position of Physical Science Technician at
the San Antonio Air Logistics Center (SA-ALC) for the agency. On January
12, 1998, the agency proposed a thirty (30) day suspension for petitioner
based on the charge of inappropriate and offensive conduct in the
workplace which violated agency and SA-ALC policy on sexual harassment.<1>
On February 27, 1998, petitioner responded to the agency's allegations.
In his response, petitioner alleged that the agency failed to demonstrate
that his actions were in violation of agency and SA-ALC sexual harassment
policy and that the allegations made against him were false. On March
27, 1998, the agency issued its finding in support of the suspension
and the punishment. Petitioner appealed the agency's decision to the
Board claiming that the suspension was motivated by discriminatory
intent based on his race (Black), national origin (African American),
and reprisal (prior EEO activity). Upon review of the record, the
MSPB Administrative Judge (AJ) found that although petitioner showed
that he was a member of a protected group, he failed to establish
that the agency's action was motivated by a discriminatory animus.
Regarding petitioner's claim of reprisal discrimination, the MSPB AJ
held that even though the deciding and proposing officials were aware
of his prior EEO activity at the time of the adverse action, petitioner
failed to establish that his EEO activity was considered in the agency's
determination that the suspension was warranted in this situation.
Therefore, the MSPB AJ found that the agency showed by a preponderance
of the evidence that petitioner's inappropriate and offensive conduct
warranted discipline and that petitioner failed to establish that the
suspension was motivated by discriminatory intent.
Petitioner filed a petition for review with the Board to reconsider the
initial decision issued by the MSPB AJ. The Board concluded that his
petition failed to meet the statutory criteria for review and affirmed
the MSPB AJ's initial decision.
In his petition for review, petitioner alleges that the MSPB AJ erred in
denying his affirmative defenses of discrimination on the bases of race,
national origin, and reprisal. Petitioner argues that the agency failed
to show that petitioner's actions were in violation of agency or AS-ALC
policy and therefore, failed to articulate a legitimate, nondiscriminatory
reason for its action. Finally, the petitioner asks that the Commission
conclude that reasons given by the agency for petitioner's suspension
were pretext for discrimination and award petitioner complete and total
relief.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board with
respect to the allegation of discrimination based on race, national
origin, and reprisal constitutes a corrective interpretation of any
applicable law, rule, regulation or policy directive and is supported
by evidence in the record as a whole. 29 C.F.R. �1614.305(c).
Race and National Origin Discrimination
Petitioner's allegation of race and national origin discrimination
constitutes a claim of disparate treatment which is properly analyzed
under the three-tier order and allocation of proof set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This means
that the petitioner must present a body of evidence such that, were
it not rebutted, the trier of fact could conclude that unlawful
discrimination did occur. The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory explanation for its action.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In this regard, the agency need only produce evidence sufficient
"to allow the trier of fact rationally to conclude" that the agency's
action was not based on unlawful discrimination. Id. at 257. Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993). Although the burden of production may shift,
the burden of persuasion, by a preponderance of the evidence, remains
at all times on the petitioner. Burdine, 450 U.S. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
merely was a pretext for discrimination. Id.
In the present case, the agency articulated a legitimate,
nondiscriminatory reason for petitioner's suspension, specifically that
petitioner engaged in inappropriate and offensive conduct in the workplace
which violated the agency and SA-ALC sexual harassment policy. Thus, the
inquiry must focus on whether petitioner has established by preponderant
evidence that the agency's reasons for his suspension were a pretext for
race and national origin discrimination. In support of his contention
that the agency discriminated against him, petitioner argues that the
record does not show that he violated the agency's and SA-ALC's policy
on sexual harassment. The Commission finds that petitioner has failed
to establish that the agency's reasons for its actions were pretext
for race and national origin discrimination. The record supports the
agency's contention that petitioner violated the agency and SA-ALC sexual
harassment policy and that based on petitioner's conduct, the agency
issued him a thirty (30) day suspension. We further find nothing in
the record to support petitioner's contention that the agency removed
him for reasons relating to his race or national origin.
Reprisal Discrimination
Petitioner also alleges that he was discriminated against on the basis
of reprisal. The Commission finds that petitioner has established a
prima facie case of reprisal discrimination because he has shown that
he engaged in prior EEO activity and that the proposing and deciding
officials were aware of his prior EEO activity.
Once petitioner establishes a prima facie case of reprisal, the
agency must articulate a legitimate, nondiscriminatory explanation for
petitioner's suspension. The agency argues that they suspended petitioner
for violating the agency's policy on sexual harassment by his conduct
towards contract employee-1 and contract employee-2. The Commission finds
that the evidence supports the agency's explanation for the suspension.
Further, we notes that petitioner has not submitted persuasive evidence
that the agency more likely than not was motivated by retaliatory animus
when it removed him. Therefore, the Commission finds that the petitioner
failed to show that the agency's action had a discriminatory intent.
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
Board'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 RIGHTS - ON APPEAL
RIGHT TO FILE A CIVIL ACTION (W1092)
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 (Z1092)
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:
Dec. 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the agency, and MSPB on:
_________________________
_________________________
1 The agency based its decision on the following reasons: 1) petitioner
inappropriately pursued a dating relationship with contract employee-1; 2)
petitioner harassed and intimidated contract employee-1; 3) petitioner
made inappropriate sexually oriented comments to contract employee-1; 4)
petitioner touched contract employee-1 on her back, hair, and side and
attempted to kiss her; and 5) petitioner made inappropriate comments and
conduct towards contract employee-2.