0320140022
05-21-2015
Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320140022
MSPB No. SF0752120168I1
DECISION
On January 2, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Petitioner worked as a Transportation/Mobile Equipment Maintenance Mechanic, WG-5801-10 at the Northern Warfare Training Center in Fort Greely, Alaska. Petitioner's job duties included maintaining the ski life line at the facility, as well as various vehicles at the facility. Petitioner alleged that the Agency discriminated against him on the basis of disability (Post Traumatic Stress Disorder) when he was removed from his position, effective December 13, 2011.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's actions. The AJ found that Petitioner was removed due to insubordination and lack of candor. The AJ found that the first charge of insubordination, where Petitioner was allegedly operating an ATV on August 21, 2008, without a helmet, was not sustained because the AJ found that Petitioner's supervisor (S1) did not testify that Petitioner refused to wear his helmet while operating an ATV. However, the AJ found that there were two other incidents where Petitioner was ordered to wear a helmet while operating an ATV and Petitioner willfully and intentionally refused to do so. The AJ found that regarding those incidents, the charge of insubordination was sustained.
Regarding the charge of lack of candor, the AJ found that Petitioner failed to truthfully respond when S1 asked him on August 26, 2008, if the ski lift lines were ready for inspection. Petitioner responded that they were but failed to indicate that he had bypassed the safety switch for the lift lines. The AJ noted that bypassing the safety switch disabled the functionality of the safety switch. Only when it was discovered by an outside contractor, did Petitioner admit to bypassing the safety switch. Therefore, the AJ found that the charge of lack of candor was sustained.
Regarding Petitioner's allegations of disability discrimination, Petitioner alleged that the Agency regarded him as being disabled (Post Traumatic Stress Disorder) and treated him in a disparate manner when it required him to wear a helmet while operating a vehicle. Petitioner asserted that others were not held to the same requirement. The AJ found that S1 and Petitioner's second-line supervisor (S2) did not regard him as being disabled and were not aware in August 2008 that Petitioner had PTSD. The AJ noted that Petitioner acknowledged that he did not claim to have PTSD until months after the events at issue occurred and subsequent to the Agency's issuance of the first letter of proposed removal. The AJ credited the testimony of the Commandant of the facility (S3) that Petitioner's alleged PTSD did not play a role in his decision and that he did not perceive Petitioner as being disabled. Consequently, the AJ found that the decision to remove Petitioner was sustained.
Petitioner filed a petition for review of the initial decision with the full Board. The Board issued a final order finding that Petitioner's petition was untimely and dismissed the petition for review. Petitioner then filed the instant petition with the Commission. Petitioner requested that the Commission review the final decision with respect to his discrimination allegations.
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).
Here, we find that the MSPB correctly found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Petitioner was insubordinate and failed to provide truthful answers when questioned regarding the safety of the ski lift lines, as stated above. Further, we find that Petitioner failed to offer any evidence to support his assertion that the Agency was motivated by discriminatory animus. Although Petitioner asserted that other employees did not wear helmets and were not required to do so, the record does not support this claim. Further, to the extent that Petitioner argued that improper training led to him mistakenly telling S1 that the ski lift lines were ready for inspection, we find that this contention does not indicate that the Agency's reasons for terminating Petitioner were due to discriminatory animus based on his disability. As such, we find that Petitioner failed to offer any persuasive evidence that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory reasons.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
_5/21/15_________________
Date
1 In reaching the decision above, the Commission has assumed, for the purpose of analysis, that Petitioner was an individual with a disability as he alleged.
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0320140022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320140022