[Redacted], Johnathon M., 1 Petitioner,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Sep 8, 2022

Petition No. 2022002967 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnathon M.,1 Petitioner, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Petition No. 2022002967 MSPB No. CH-0752-21-0299-I-1 DECISION On April 29, 2022, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of an 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 Quality Assurance Specialist at the Defense Contract Management Agency (DCMA) in the Twin Cities and Cedar Rapids, Minnesota as well as in Davenport, Iowa. The record reflects that on December 18, 2019, Petitioner was issued a Proposed 6-Day Suspension as a result of a Command Directed Investigation (CDI) related to complaints of sexual harassment and unprofessional conduct. In addition, the record reflects that Petitioner had performance issues at work, including timekeeping discrepancies, deviating from his fixed schedule, teleworking without an approved telework schedule, and problematic conduct. As a result of these issues, on August 1, 2019, Petitioner was issued a Proposed 10-Day Suspension. The suspension was enforced, but ultimately reduced to 3-days. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022002967 2 In September 2020, Petitioner was involved in a verbal altercation with another employee (Employee 1), wherein Petitioner stated, "don't fucking talk to me" and "I said, don't you mother fucking talk to me." On December 18, 2020, Petitioner was interrupted during a Zoom meeting, and when asked if he had put the microphone on mute during the interruption stated, "Fuck mute. He can wait." On another occasion on January 7, 2021, Petitioner and an employee (Employee 2) were seen physically touching and pushing each other. Employee 2 asked that Petitioner be kept away from their station. On February 9, 2021, Petitioner was issued a Letter of Warning and Instruction for habitual tardiness and absence from his assigned workplace during his assigned tour of duty. At this time, he was warned that additional tardiness may result in being charged Absent Without Leave (AWOL). Subsequently, Petitioner was late for work on seven separate dates in February 2021. On February 23, 2021, he was issued a Notice of Placement on Administrative Leave Status pending an investigation into recent incidents. Upon the issuance of this placement, Petitioner punched a coworker in the face and head at least four times. Petitioner alleged that he acted in self-defense. On March 5, 2021, at the conclusion of the investigation, Petitioner was issued a Notice of Proposed Removal. The notice indicated that the charges included: inflicting bodily injury to another employee, failure to follow instructions, absence without leave, and conduct unbecoming of a federal employee. Petitioner appealed the March 5, 2021 removal to the MSPB and alleged that he was fired due to his race and underlying discriminatory treatment. On September 29, 2021, the MSPB Administrative Judge (AJ) held a hearing. On March 3, 2022, the MSPB AJ issued an initial decision on the matter. In their decision, the MSPB AJ determined that Petitioner had not proven discrimination or reprisal based on his race or prior EEO activity. In finding no discrimination based on race or reprisal, the MSPB AJ relied upon the MSPB’s decision in Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015). In Savage, the MSPB, among other things, determined that the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was not applicable to its proceedings. Savage, 122 M.S.P.R. at 637. In rejecting the McDonnell Douglas framework, the MSPB maintained that the MSPB’s authority to adjudicate and remedy alleged violations of 42 U.S.C. § 2000e-16 is a matter of civil service law. Id. On April 29, 2022, Petitioner filed the instant petition. Petitioner argues that the MSPB AJ erred and failed to consider his affirmative defenses with regard to his removal. To this end, Petitioner argues that for several years during his employment with the Agency, he was subject to disparate treatment based on race which culminated in his termination. In response, the Agency argues that the MSPB AJ’s decision correctly interpreted all relevant laws, regulations, and policies relevant to Petitioner's affirmative defenses, and was clearly based on the full evidence presented at the hearing. 2022002967 3 STANDARD OF REVIEW 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). ANALYSIS AND FINDINGS In Petitioner’s case, we find that the MSPB AJ erred by not applying the analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), when deciding Petitioner’s claims of discrimination based on her sex, national origin, and reprisal. We will analyze this case according to the McDonnell Douglas paradigm. See Raphael C. v. Dep’t of Vet. Aff., EEOC Petition No. 0230160016 (May 10, 2016). We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her as alleged. To prevail in a disparate-treatment claim, Petitioner must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas. Petitioner must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Petitioner must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Petitioner can do this by showing that the proffered explanation is unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511. We assume, for purposes of analysis only and without so finding, that the Petitioner has established prima facie cases of discrimination based on race and reprisal. However, the Agency has articulated legitimate, nondiscriminatory reasons for its action. The Agency has described a series of events wherein Petitioner was unsuccessful in his position, and instances wherein he was openly hostile in the workplace. Based on Petitioner's actions over time, and after warnings, the Agency eventually conducted an investigation which led to his removal on March 5, 2021. Despite Petitioner’s arguments and testimony, he has not shown that there was underlying discrimination which was the cause of his removal, rather than his actions. As noted by the Agency, Petitioner used profanity as work in an aggressive manner, complaints of sexual harassment and misconduct were lodged against him, and he physically assaulted another employee upon receipt of his administrative leave status. 2022002967 4 We acknowledge that Petitioner testified that the absences cited to in his removal letter were due to inclement weather. He testified that he informed his supervisor that he would be late due to weather and requested to work from home or an excuse for late arrival. However, it is not apparent that these requests should have been honored, nor that there were other employees who required such frequent tardiness due to weather. Petitioner also testified that one the occasion he requested that he not be spoken to, he did so because of prior comments around the office which suggested disdain for Black people and Black culture. Nonetheless, a witness testified that they overheard the conversation and that Employee 1 greeted Petitioner in a friendly manner, and Petitioner immediately responded with profane and hostile language. 2 On the whole, Petitioner has not provided testimony, argument, or evidence which shows that the Agency improperly removed him due to racial animus, nor that the Agency has engaged in pretextual discrimination. Therefore, we find that Petitioner has not proven that the Agency discriminated against him based on his protected class or in reprisal for prior 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. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB’s finding that Petitioner did not establish the affirmative defense of unlawful discrimination. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. 2 The Agency is on notice, however, that comments as described by Petitioner in the hearing, including: “going coon hunting,” “Black people are lazy,” and “Get your coon ass out of here,” are highly inappropriate and offensive. 2022002967 5 You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Petitioner’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 8, 2022 Date