0320150079
02-25-2016
Zachary K.,1 Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachary K.,1
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320150079
MSPB No. SF0752140054I1
DECISION
On July 1, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission CONCURS with the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB correctly determined that the Agency did not discriminate against Petitioner based on race and age when it removed him.
BACKGROUND
Petitioner worked as a Painting Worker in the Agency's Trades Division at the Marine Depot Maintenance Command in Barstow, California. Petitioner alleged that the Agency discriminated against him on the bases of race (Hispanic) and age (58) when it removed him on October 19, 2013. On July 23, 2013, the Agency conducted a random search of Petitioner's work area. A Marine Corps Police Officer (MCPO) saw Petitioner retrieve an item from his locker and start to walk away quickly. MCPO observed that Petitioner had an item in his right hand and was rubbing his fingers in an attempt to discard the contents of the item. MCPO asked Petitioner to show him what was in his hand, which was identified as a small plastic bag containing white residue. MCPO also observed that Petitioner's speech was slurred; his face was flush; his attitude uninhibited and anxious and; his eyes were watery and bloodshot. Artificial marijuana was also recovered from Petitioner's locker.
Petitioner submitted to a drug test later that day based on a "reasonable suspicion," in accordance to the Agency's Drug Free Workplace Program. On August 21, 2013, the results of the drug test reported that Petitioner tested positive for amphetamines, methamphetamines and marijuana (THC).
On September 10, 2013, the Agency issued Petitioner a Proposed Removal for Possession of a Controlled Substance Aboard a Military Installation and Testing Positive for amphetamines, methamphetamines and marijuana (THC) while in a Duty Status. Petitioner submitted a written reply on September 23, 2013, and presented an oral reply on October 2, 2013. On October 16, 2013, the Agency decided to remove Petitioner, effective October 19, 2013. The deciding official (DO) found Petitioner's conduct to be extremely serious and obviously intentional. He also concluded that Petitioner could not perform the essential functions of his position in a safe manner while he is impaired.
On November 1, 2013, Petitioner appealed his removal to the MSPB and a hearing was held on January 13, 2014. An MSPB Administrative Judge (AJ) issued an initial decision on November 6, 2014, mitigating the removal to a 60-day suspension. The AJ decided that the Agency's determination was not entitled to deference and that removal was not within the tolerable limits of reasonableness because DO testified that he did not give any consideration to alternative penalties to removal or any mitigating factors. The AJ found that since the Agency failed to weigh the relevant Douglas factors, she was required to reevaluate the Agency's penalty and determine a penalty within the tolerable bounds of reasonableness. She determined that while Petitioner's conduct was serious, considering the mitigating factors, the penalty of removal was not within the tolerable bounds of reasonableness and ordered the Agency to cancel the removal and substitute a 60-day suspension without pay.
While Petitioner did not dispute the charges, he raised an affirmative defense of discrimination based on race and age. Petitioner alleges that he was treated differently than similarly situated employees who were outside his protected bases. Petitioner provided two coworkers as comparators. The first comparator (C1) was a 24-year old Caucasian who was found to be in possession of marijuana and drug paraphernalia aboard a government facility and who tested positive for marijuana, amphetamines and methamphetamines while on duty. C1 was a Hazardous Waste Handler in the Risk Management Division. In November 2011, the Deputy Commander (DC) decided to remove C1 but entered into a last chance agreement (LCA) which required C1 to serve a 14-day suspension and held his removal in abeyance for two years. The second comparator (C2) was a 28 year old Caucasian who tested positive for marijuana while on duty. C2 was a Heavy Mobile Equipment Repairer in the Production Department. In November 2010, DC decided to remove C2 but entered into an LCA which required C2 to serve a 14-day suspension and held his removal in abeyance for one year.
The AJ found that these named comparators were not similarly situated. She determined that C1was not similarly situated because he held a different position, in a different division and the decision to enter into an LCA was made by a different deciding official,. The AJ decided that C2 was not similarly situated because he did not commit the same offense and had a different deciding official. The AJ held that Petitioner did not show that he was discriminated against based on race and age because DO denied considering Petitioner's race or age in making his decision and Petitioner provided no evidence to support his claims.
On December 11, 2014, the Agency filed a Petition for Review. The Agency alleged that the AJ made errors of fact and misapplied the law because absent an abuse of discretion, Agency decisions taken to manage the Federal workforce should not be disturbed by the MSPB. On February 4, 2015, Petitioner submitted a Response to the Agency's Petition for Review requesting that the initial decision be sustained. The Agency provided a reply to Petitioner's response and on June 8, 2015, the MSPB issued an Opinion and Order. The MSPB reversed the initial decision and sustained Petitioner's removal. The MSPB found that DO had considered the Douglas factors, in a three-page document that was attached to the decision, and so the AJ erred in failing to give the Agency's penalty determination deference. Additionally, the MSPB found that even if the Agency's penalty determination was not entitled to deference, the penalty of removal was within the tolerable limits of reasonableness. The MSPB did not address Petitioner's affirmative defense of discrimination based on race and age in its order.
The Petitioner then filed the instant petition. He alleges that the Agency discriminated against him because he was not afforded the opportunity for an LCA, unlike similarly situated employees, outside of his protected bases. Petitioner also argues that the Agency discriminated against him when it did not consider any mitigating factors in the decision to remove him.
ANALYSIS AND FINDINGS
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).
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Petitioner retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In his petition, Petitioner alleges that the Agency discriminated against him when it did not offer him an LCA, unlike other similarly situated employees outside his protected bases. Specifically, Petitioner alleges that the Agency imposed 14-day suspensions for C1 and C2, but removed him. Additionally, Petitioner argues that DO was employed by the Agency as the Trades Division Head at the time that C2 was afforded an LCA.
The record shows that while C1's misconduct was similar to that of Petitioner's, C1 held a different position, in a different division and his adverse action was decided by DC, another Agency official. Additionally, the record shows that C2 held a different position, had different supervisors and his misconduct differed from Petitioner's in that C2 was found to be under the influence of only marijuana while on duty, not amphetamines and methamphetamines. Petitioner's argument that DO was the Trades Division Head at the time that C2 was afforded an LCA is irrelevant because DO was not the deciding official who offered C2's LCA. DC was that deciding official. Accordingly, we agree with the AJ that C1 and C2 are not similarly situated coworkers.
Assuming, arguendo, that Petitioner had established a prima face case of discrimination based on his race and age; we find that the Agency articulated a legitimate, nondiscriminatory reason for removing Petitioner. The Agency removed Petitioner based on his possession of and being under the influence of marijuana, amphetamines and methamphetamines while on duty. Petitioner did not dispute the charges and the Agency decided to remove him due to the seriousness of his conduct, especially in light of the potential safety issue of him working while under the influence. Additionally, the record shows that Petitioner admitted to using drugs during the entire time he was employed by the Agency, for over nine and a half years.
Additionally, we agree with the MSPB that Petitioner did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. DO testified that he did not consider Petitioner's race or age when making his decision to remove him and Petitioner has not provided any evidence in support of his discrimination claim based on race and age. The record also shows that DO removed a similarly situated employee (C3), who was also older than 40 years old and Caucasian. C3, a Welder in the Trades Division, was removed for "Possession of a Controlled Substance and Drug Paraphernalia Aboard a Military Installation and Testing Positive for amphetamines, methamphetamines and marijuana (THC)" and was not offered an LCA. Petitioner has not presented evidence that DO treated a similarly situated employee, outside of his protected classes, more favorably by offering an LCA.
Petitioner also alleges that the Agency discriminated against him when it did not consider the Douglas factors when deciding his removal. While the AJ decided that DO had not considered any mitigating factors based on DO's testimony, the MSPB found that DO had conducted a Douglas factor analysis. The record shows that DO provided a document outlining an analysis on each of the Douglas factors, along with his decision to remove Petitioner. We find that the MSPB's conclusion that DO conducted a Douglas factors analysis is supported by substantial evidence.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to remove him was based upon race and age.
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 (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. 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
__2/25/16________________
Date
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.
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