0320110039
02-08-2012
John E. Gray, Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
John E. Gray,
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320110039
MSPB No. DC-0752-110022-I-1
DECISION
On July 1, 2011, 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, 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 we Concur with the MSPB’s finding that
Petitioner failed to show that discriminatory animus was considered with
regard to the Agency’s decision to remove him from federal employment.
BACKGROUND
At the time of events giving rise to this mater, Petitioner worked as a
Security Assistant at the Agency’s Office Automation facility at the
Navy Yard, in Washington, D.C. Petitioner was issued an official written
reprimand on May 18, 2009, for his failure to follow instructions and for
being absent without leave (AWOL). To support the reprimand, it was noted
that Petitioner on two occasions had failed to follow his supervisor’s
instructions with regard to leave procedures and had been AWOL on four
separate occasions. On September 24, 2009, a seven-day suspension was
proposed for Petitioner’s failure to again comply with leave procedures.
In lieu of a suspension, Petitioner was issued a Letter of Requirement
(LOR). In pertinent part, the LOR “directed” the Petitioner to
contact his supervisor whenever he anticipated being tardy or when he
was unable to report for duty. The LOR further provided that he was to
contact and speak directly to his supervisor before 0600 hours on the date
of his absence or tardiness, it was noted that he was not permitted to
leave a voicemail or have a friend or family member contact the supervisor
on his behalf. If Petitioner was unable to reach his supervisor he was
to call the Director of Operations. Petitioner was notified that his
failure to adhere to the procedures outlined in the letter would result in
disciplinary action up to and including his removal from Federal service.
On March 29, 2010, Petitioner was issued a suspension for 10 days for
failing to follow instructions. Before he could serve the suspension,
Petitioner suffered a work-related injury to his knee. He was granted
continuation of pay by the Office of Worker’s Compensation Program
(OWCP) for the entire month of April 2010. As such, his suspension
dates were rescheduled. Thereafter, he was scheduled to be suspended
from duty from May 26, 2010 through June 4, 2010. Petitioner was
directed to return to work on June 7, 2010. Petitioner failed to
return to work and was absent through June 18, 2010. He also failed
to contact his supervisor regarding his absence as was required by the
terms of the LOR. The record reveals that during this period of time
Petitioner was absent because he had knee surgery for a torn meniscus.
Petitioner provided medical documentation regarding this absence to the
Human Resources Specialist who was handling his OWCP claim but failed to
provide this information to his supervisor. Petitioner argued that he
believed that the Human Resources Specialist would pass this information
along to his supervisor. The Human Resources Specialist maintained that
she told Petitioner that she was not allowed to divulge this information
and therefore he needed to contact his supervisor.
When Petitioner returned to work his supervisor asked to meet him in
her office. Petitioner’s supervisor questioned him and asked him for
an explanation for his absence, voices were raised and the supervisor
indicated that Petitioner called her a liar and other names and she
believed that Petitioner lurched at her while she was sitting behind
her desk.
In a letter dated July 13, 2010, the Agency proposed Petitioner’s
removal because he failed to follow instructions and engaged in
disrespectful conduct toward his supervisor. Petitioner did not submit
a letter in response. Therefore, in a letter dated August 30, 2010,
the Agency removed him from his position effective September 6, 2010.
Thereafter, Petitioner filed an appeal with the MSPB for wrongful
termination. He also alleged that the Agency discriminated against
him on the bases of age (49), race (African American), and in reprisal
for prior EEO activity when on September 6, 2010, he was removed.
Petitioner maintained that his age was considered in the decision
to remove him because on two occasions in 2009, his supervisor made
comments about his age. In the first instance, in early 2009, one of
Petitioner’s colleagues was involved in a dispute with an irate customer
and Petitioner did not intervene. Following the incident, his supervisor
asked Petitioner why he had not intervened and she stated, “you’re
the oldest person, why didn’t you diffuse the situation.” Two months
later, the second incident occurred. Petitioner’s supervisor again
mentioned that he was the “oldest one there.” Petitioner testified
that his supervisor “looked to him for leadership” because he was
the oldest and most experienced employee but, on the other hand she
“held these things against” him.
Petitioner also maintained that the removal action was the product of
race discrimination. He did not however, introduce any evidence to
support his race discrimination claim. He mentioned however that he
believed the 10-day suspension which preceded the removal action was
the product of race discrimination but again he did not elaborate.
An MSPB Administrative Judge (AJ) held a hearing and issued an initial
decision affirming the Agency’s removal action. The AJ found that
the Agency had articulated legitimate, nondiscriminatory reasons for
its actions, namely, that the removal was proposed because Petitioner
failed to comply with leave procedures and the LOR directives. Further,
with regard to Petitioner’s allegation of age discrimination, the AJ
found that Petitioner had not shown that his age was considered or that
the Agency’s articulated legitimate, nondiscriminatory reasons were
pretext for discrimination. Furthermore, with regard to Petitioner’s
claim of race discrimination, the AJ determined that the Petitioner failed
to provide any evidence that his race was considered with regard to the
removal decision. In fact, the AJ noted that the management official
that ultimately signed-off on Petitioner’s removal was not aware of
Petitioner’s race.
Finally, with regard to Petitioner’s claim of retaliation, the AJ found
that Petitioner apparently based his reprisal claim solely on the timing
of the removal action. Petitioner filed an EEO complaint in October
2009, and the Agency proposed his removal on July 13, 2010. The AJ
found that Petitioner failed to show the necessary nexus between these
events, as no testimony was entered which showed that his supervisor or
the concurring official had knowledge of Petitioner’s EEO complaint.
The AJ found that there was no evidence in the record to support or
even suggest that the relevant Agency officials believed the alleged
misconduct was unsubstantiated or that a lesser penalty was warranted
under the circumstances. The AJ found that Petitioner failed to
introduce any direct or circumstantial evidence to support a finding
that the Agency’s stated reason for its action was pretextual.
Accordingly, the AJ found that the Agency demonstrated by preponderant
evidence that the Petitioner engaged in misconduct and that the
penalty imposed was properly considered and did not exceed the bounds
of reasonableness. The AJ also found that Petitioner failed to prove
that the removal action was the product of race, age and/or reprisal.
Petitioner did not seek review by the full Board. He appealed directly
to the EEOC. On appeal, Petitioner makes no new arguments.
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.
In the instant case, the Commission finds that even if we assume
arguendo that Petitioner established a prima facie case of race and age
discrimination and retaliation for prior EEO activity, we find that the
Agency has articulated a legitimate, nondiscriminatory reason for its
action, namely, that Petitioner was removed from his position because
he failed to follow the LOR directives, the leave requirements of the
office and the instructions of his supervisor. We find that Petitioner
has provided no evidence and the record does not show that the Agency’s
articulated reason was pretext for prohibited discriminatory animus.
We find that Petitioner failed to demonstrate that his race, age, and/or
prior EEO activity were considered with regard to the Agency’s decision
to remove him. Accordingly, we Concur with the MSPB’s decision finding
no discrimination.
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
___2/8/12_______________
Date
2
0320110039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320110039