0320140007
05-22-2015
Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320140007
MSPB No. CH0752120705I1
DECISION
On October 11, 2013, 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
At the time of events giving rise to this complaint, Petitioner worked as a Police Officer at the Agency's Naval Station facility in Great Lakes, Illinois. Petitioner alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when a decision was made to remove him from his position effective July 27, 2012.
The Agency raised four charges in support of Petitioner's removal. Petitioner was charged with: 1) absence without leave (AWOL) and failure to follow leave procedures on February 11, March 6, and May 19, 2012; 2) AWOL and failure to attend mandatory refresher training on February 27, 2012; 3) failure to carry out proper work assignments, failure to follow Standard Operating Procedures (SOPs), and leaving work without proper authorization on March 16, 2012; and 4) misuse of government property and wasting time on May 13, 2012.
Charge 1
Specification 1: The record reveals that on February 11, 2012, Petitioner called the dispatch center prior to the start of his shift and informed the dispatcher that he would be late, but did not request to speak with a supervisor as is required by department procedures. The Watch Commander, Petitioner's first-line supervisor (S1), testified Petitioner came to work and signed in 15 minutes late. He testified he later talked to Petitioner who informed him he was late due to traffic. S1 testified that Petitioner did not request leave or submit a written request for leave, and was therefore marked as .25 hours AWOL. S1 testified that Petitioner was aware that if you are tardy, you are considered AWOL, and that he was counseled and disciplined about his recurrent tardiness in the prior year.
Specification 2: At approximately 7:00 p.m., on March 6, 2012, Petitioner called and stated he had an emergency and would not be reporting for his 10:00 p.m. to 6:00 a.m. shift. Petitioner stated he could not report for work due to "emergency court" the following day. Petitioner did not come to work on March 6, 2012, and did not request leave in advance. Petitioner stated that he was on FMLA leave. There is no evidence in the record that Petitioner had a FMLA certification covering court appearances and, although he stated that he was on FMLA leave, he did not raise any FMLA claim in connection with his appeal. When Petitioner returned to duty, he submitted a request for leave, but submitted no evidence or documentation to support his claim of an emergency or of a required court appearance. The request for FMLA leave was denied, and Petitioner was charged AWOL.
Specification 3: On May 19, 2012, Petitioner telephoned at about 9:15 p.m., prior to his 10:00 p.m. shift and stated he was in a traffic jam and that he could not get to work. Petitioner was asked to call again in 30 minutes, but he called back in 10 minutes, and stated traffic was not moving so he was not coming to work. Petitioner indicated that and he was taking emergency annual leave. Petitioner, however, had no leave available to use, and stated that he was aware of this fact but that he was but that he was taking emergency annual leave. S1 testified that he talked with the Petitioner about this incident, and Petitioner confirmed that he could not come to work because traffic was not moving. Petitioner stated the leave was not something one could approve [or disapprove], that he had leave on the books and he was taking it. The leave was denied because a traffic jam was not considered an emergency.
Charge 2
Petitioner was scheduled to attend a one-week training course starting at 7:00 a.m. on February 27, 2012, but did not report for duty on the first day of training. Testimony in the record indicated that the training was scheduled for the year, and the entire staff was notified in January of the dates for their training for the year. Additionally, all Watch Commanders were sent a schedule specifically for the February 27, 2012 class in January 2012. Petitioner's Watch Commander, testified that on February 2, 2012, he sent an email to all employees, including the Petitioner, with the training schedule attached. A document in the record reflects that the training schedule was sent to the Petitioner's government email address. According to the Agency, Petitioner was clearly scheduled for training the week of February 27, 2012, was aware, and chose not to attend.
Charge 3
The record reflects that on March 16, 2012, Petitioner was assigned to one of the two late-car assignments. A normal shift is from 10:00 p.m. to 6:00 a.m., but when one is assigned late-car duty, the shift ends at 6:30 a.m. Petitioner admits that on March 16, 2012 he returned to the station from his regular duties and "downloaded" his equipment prior to 6:30 a.m., but he did not sign out when he did so. Petitioner signed out at 6:30 a.m., leading one to assume that he was actually on late-car duty until that time. Petitioner, however, was not on duty. The record reflects that he failed to answer the late-car call, he left his late-car partner to answer a call alone, and he signed out before he was relieved of duty by a Watch Commander.
Charge 4
On May 13, 2012, while on duty, Petitioner spent approximately two hours making over 1,300 copies on a government copy machine for his personal off-duty business venture. Petitioner admits this conduct, but denies it was improper. Petitioner states that in years past he was told he could use the copier as long as he brought in his own paper. He did not remember who told him this.
The Agency presented the above stated charges in support of the removal. A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on December 17, 2012. In the initial decision, the AJ found that that Agency established by a preponderance of the evidence all four charges. The AJ found that Petitioner failed to present preponderant evidence to support his contention that the decision to remove him from his position was done in reprisal for prior EEO activity.
Petitioner sought review by the full Board. The Board denied the Petition for Review and affirmed and adopted the AJ's initial decision. Petitioner subsequently filed the instant petition. In the petition, Petitioner reiterates his concerns that the removal was the result of discrimination. Additionally, Petitioner raised the issue of a violated settlement agreement from August 24, 2009 and contends that he was subjected to a hostile work environment.
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).
The Commission finds that the MSPB's decision in the instant matter 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. Assuming, arguendo, that Petitioner established a prima facie case of discrimination based on reprisal for prior EEO activity, the Agency provided legitimate, non-discriminatory reasons for his removal. Petitioner presented no persuasive evidence of discriminatory animus surrounding his removal, or that the removal was issued in response to his participation in prior EEO activity. The record evidence clearly establishes that Petitioner was counseled about some of these matters prior to his engaging in the misconduct, and that in some instances; Petitioner had been previously disciplined for the same behavior. Like the MSPB, the Commission finds that Petitioner failed to establish that the decision to remove him was based on his having engaged in protected EEO activity.
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
__5/22/15________________
Date
2
0320140007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140007