0320140080
08-06-2015
Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Petition No. 0320140080
MSPB No. AT0752130142I1
DECISION
On September 3, 2014, 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 in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
Petitioner worked as a Federal Air Marshal (FAM), at the Agency's field office in Charlotte, North Carolina. Petitioner alleged that the Agency discriminated against him on the basis of race (African-American) when on October 23, 2012, he was removed from his position.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency appropriately removed Petitioner for five incidents of sleeping while on duty and one incident of lack of candor that resulted from the investigation of the allegations of Petitioner sleeping while on duty. Specifically, the AJ found that Petitioner was seen sleeping while on duty during five separate flights between January 5, 2012 and January 22, 2012 by FAM1 and FAM2 who were also on the same flight and were on duty. The AJ credited the testimony of the two FAMS over Petitioner's assertions that he did not fall asleep during these flights but took small breaks consistent with Agency policy.
The AJ further found that Petitioner did not demonstrate that the Agency was motivated by racial animus when he was removed. The AJ noted that while FAM1 and FAM2 (both Caucasian) had been involved in "workplace quarrels" with Petitioner "mostly more than five years ago," it was unlikely that they would risk their careers and reputations by committing perjury to harm him.
The AJ also noted Petitioner and FAM1's versions of a conversation about race in January 2012. According to Petitioner, on January 5, FAM1 asked him "why do Black people like to be called African American when they have not visited Africa and do not know anything about Africa, nor anyone there? Why can't ya'll just be called Black Americans?" Petitioner maintained that he found this comment offensive and thought it demonstrated FAM1's discriminatory intent. FAM1 maintained, however, that on January 14, during a layover in Paris, he, Petitioner and FAM3 had dinner and drinks. During the conversation, FAM1 stated there was a discussion about why Petitioner wanted to be called African American, as opposed to just an American because he was born in the United States and had no ties to Africa. At some point in the conversation, Petitioner told FAM1 "that's alright, you're just my nigger." Both FAM1 and FAM3 indicated that they told Petitioner they did not appreciate that language.
The AJ found that whether he credited Petitioner's or FAM1's version of the discussion there was no indication of racial animus nor did it establish that there was a racially charged hostile work environment. The AJ also found that Petitioner did not put forth any evidence that the deciding official's decision to remove him was tainted by discriminatory animus.
Petitioner sought review of the AJ's initial decision by the full Board. The Board denied the petition for review and affirmed the initial decision. The Board found that Petitioner's assertion that the AJ erroneously shifted the burden of proof to him was unsubstantiated. The Board also deferred to the AJ's credibility determinations despite Petitioner's challenges to those determinations. Finally, the Board found that Petitioner's assertion that the deciding official was influenced by FAM1 and FAM2's alleged discriminatory animus was not substantiated because Petitioner did not show that they were motivated by discriminatory animus when they reported him as sleeping on duty.
Petitioner then filed the instant petition. Petitioner argues for the first time that he was subjected to harassment and retaliation. Further, Petitioner reiterates his arguments made before the AJ and the Board that FAM1 and FAM2 were motivated by discriminatory and retaliatory animus when they reported him for sleeping on duty.
ANALYSIS 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).
In this case, assuming Petitioner established a prima face case of race discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Petitioner was removed because he was asleep during five separate flights when he was on duty and that he did not answer questions honestly during the investigation of those incidents. Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, it is Petitioner's burden to show that the Agency's reasons are not worthy of pretext. Like the MSPB, we find, however, that Petitioner did not do so. We find no persuasive evidence that the Agency was motivated by discriminatory animus. Although Petitioner argued before the AJ and before the Commission that FAM1 and FAM2 were involved in other incidents and behaved inappropriately, we find that nothing in the record supports his assertions. The AJ made credibility determinations on these issues and found that FAM1 and FAM2 were more credible that Petitioner. Petitioner has not presented any evidence to show that the AJ erred in finding their testimony credible.1
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 (W0610)
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 (Z0610)
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
__8/6/15________________
Date
1 An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
Ch. 9, � VI.B (Nov. 9, 1999).
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0320140080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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