03990146
12-27-1999
Petitioner, )
Victor Marable v. Department of the Navy
03990146
December 27, 1999
Victor Marable, )
Petitioner, )
) Appeal No. 03990146
v. ) MSPB No. DC-0752-99-0498-I1
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
On September 8, 1999, Victor Marable (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (the Commission) for
review of the Initial Decision of the Merit Systems Protection Board
(MSPB or the Board) issued July 28, 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 Navy (the 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,
color, and reprisal when he was removed.
BACKGROUND
Petitioner was found sleeping on the job on January 11, 1999 and
asked for leave without pay (LWOP) for the remainder of that day.
The following day, petitioner did not return to work. He contacted
his supervisor requesting LWOP for that day. The supervisor could
not give petitioner an immediate response but the record indicates that
petitioner was granted LWOP for that day. Petitioner continued to fail to
report for duty. On January 19, 1999, petitioner called his supervisor
informing him that he would not return until his doctor allowed him to
do so. His supervisor requested medical documentation which petitioner
agreed to provide. Petitioner failed to provide such information and,
therefore, was carried in absent without leave status (AWOL) starting on
January 13, 1999. On January 27, 1999, petitioner's director issued an
order to petitioner to do one of the following: to report for duty; to
contact the office with an explanation for his absence; or within five
(5) days, provide medical evidence for his absence. After a period of
time, petitioner failed to respond to the order and his director issued
a proposal for petitioner's removal on February 25, 1999. The agency
removed petitioner for excessive absence and failure to obey a written
order effective April 10, 1999. Petitioner appealed this action to the
MSPB, and a hearing was held on June 30, 1999. The MSPB AJ sustained
the agency's decision and upheld the removal. The MSPB AJ found that the
deciding official was not aware of petitioner's race, color, or prior EEO
activity and made her decision based on a review of petitioner's record
and any mitigating circumstances which prevented his return to duty.
Further, the AJ held that petitioner's allegation that his absence was
due to the racially charged environment was unsupported by his claim
that his supervisor had used a racial epithet in April 1998.
Petitioner has filed a petition for review without substantive comment.
The agency did not file comments in response to the petition.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board
with respect to the allegation of discrimination based on race
(African-American), color (Black) and reprisal, constitutes a correct
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 Color Discrimination
Petitioner's allegation of race and color 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); Prewitt v. United States Postal
Service, 662 F.2d 292 (5th Cir. 1981). This means that the complainant
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 complainant. Burdine, 450 U.S. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant 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 removal, namely his AWOL status
and his failure to obey orders. Thus, the inquiry must focus on whether
petitioner has established by preponderant evidence that the agency's
reasons for his removal were a pretext for race and color discrimination.
In support of his contention that the agency discriminated against him,
petitioner asserted that his supervisor used a racial epithet on two
occasions in 1992 and April 1998. The Commission finds that petitioner
has failed to establish that the agency's reasons for its actions were
a pretext for race and color discrimination. The record supports the
agency's contention that petitioner failed to comply with its request
that he submit proper medical documentation. In particular, we note that
petitioner did not comply with the agency's January 27, 1999 request that
he report to duty, contact his supervisor, or provide medical evidence
to substantiate his absence from duty. Petitioner failed to respond to
this request. We find nothing improper with the agency's request for
information from petitioner. We further find nothing in the record to
support petitioner's contention that the agency removed him for reasons
relating to his race or color.
Reprisal Discrimination
Petitioner also alleges that he was discriminated against on the basis
of reprisal. The Commission finds that petitioner has not established
a prima facie case of reprisal discrimination because the deciding
official who determined that he should be removed had no knowledge
of petitioner's EEO activity. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), affirmed,
545 F.2d 222 (1st Cir. 1976).
Assuming, for argument's sake, that petitioner established a prima facie
case of reprisal, the agency articulated a legitimate, nondiscriminatory
explanation for petitioner's removal. The deciding official testified
that she reviewed petitioner's years of service, his past work record,
and his absence from work from January 1999 through April 1999 without
medical documentation. Therefore, we find that petitioner has not
submitted persuasive evidence that the agency more likely than not was
motivated by retaliatory animus when it removed him.
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. 27, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations