0320120019
10-16-2012
Kevin Gray, Petitioner, v. Leon E. Panetta, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
Kevin Gray,
Petitioner,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Petition No. 0320120019
MSPB No. CH0752100624I1
DECISION
On August 10, 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
ISSUE PRESENTED
The issue presented is whether the decision of the MSPB, with respect to Petitioner's allegation of race, sex, and reprisal 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.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as an Auditor, YA-511-02, at the Agency's Defense Finance and Accounting Service facility in Columbus, Ohio. Petitioner alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior EEO activity when the Agency made a decision to remove him from his position based on a felony criminal conviction of two counts of receiving stolen property.1
A hearing was held on October 11, 2010 and thereafter an MSPB Administrative Judge (AJ) issued an initial decision affirming the Agency's removal action finding that Petitioner failed to meet his burden establishing by the preponderance of the evidence that the Agency had discriminated against him on the bases of race, sex, or retaliation for his participation in prior EEO activity.
In finding no discrimination on the bases of race and sex, the MSPB AJ found that Petitioner failed to show that he was similarly situated to the employees he raised as comparators. Additionally, the MSBP AJ found that the Agency's records Petitioner produced to establish disparate impact discrimination were insufficient to establish the existence of an Agency policy having a disparate impact on African-American male employees. Lastly, the MSPB AJ found that Petitioner's production of statistical information indicating that African-American males are disproportionately incarcerated failed to identify a specific Agency policy that require that all felony convictions result in removal.2
In finding no reprisal discrimination, the MSBP AJ determined that Petitioner failed to establish a prima facie case. Specifically, the MSPB AJ found that Petitioner failed to establish that the deciding official was aware of his protected activity.
Petitioner sought review of the initial decision sustaining his removal by the full Board. Petitioner did not, however, raise the MSPB AJ's findings regarding his failure to establish by preponderant evidence that the Agency discriminated against him on the bases of race, sex and reprisal in his petition to the full Board. The Board reversed the initial decision in part, declining to sustain Petitioner's removal on due process grounds. The Board made a point of noting, however, the Petitioner's failure to contest the MSPB AJ's discrimination findings; therefore, it affirmed those findings without comment. Petitioner then filed the instant petition.
In his petition for review, Petitioner requests that the Commission consider the Board's decision erroneous and issue a decision finding that he was discharged because of his race, sex and in reprisal for prior EEO activity. Additionally, Petitioner requests that the Commission award him compensatory damages and full cost associated with this action. Petitioner argues that the reasons articulated by two of the decision-makers were mere pretext for a discriminatory termination; moreover, the decision-makers were simply executing a personnel decision previously made by someone else. Petitioner argues that the decision-makers: (1) changed their reasons over the course of the removal process; (2) provided a frivolous reason for the termination; (3) inconsistently imposed standards; and (4) provided untruthful testimony during the hearing. Additionally, Petitioner contends that reliance on a criminal conviction is an admission of discrimination and not an articulation of a legitimate, non-discriminatory reason.
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).
Upon review of the record, we concur with the MSPB AJ's decision that Petitioner did not establish that the Agency's actions constituted race, sex, or reprisal discrimination. A determination that Petitioner did not challenge before the MSPB AJ's decision with respect to the EEO allegations in his petition to the full Board.
Assuming arguendo, that Petitioner established a prima facie case of discrimination on the alleged bases, we concur with the MSPB AJ that the Agency articulated a legitimate, non-discriminatory reason for his termination, namely Petitioner's felony conviction. Additionally, we agree with the MSPB AJ that Petitioner failed to establish that the Agency intentionally discriminated against him. Petitioner failed to show that he was similarly situated to the employees he raised as comparators. Additionally, with respect to his disparate impact claim Petitioner failed to establish that there was an Agency policy having a disparate impact on African-American male employees. With respect to Petitioner's reprisal claim, we agree that Petitioner has not established that the deciding official was aware of his prior engagement in protected activity.3
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
__10/16/12________________
Date
1 Petitioner, while an employee of the Agency, was arrested at work. He subsequently pled guilty as indicated above.
2 The MSPB AJ also noted that, pursuant to his plea arrangement, Petitioner was never incarcerated.
3 With respect to the matters raised by Petitioner in his petition for review to the Commission, we find that although he had the opportunity to do so, Petitioner chose not to raise these concerns to the full Board by requesting that it review the MSPB AJ's initial decision with respect to his discrimination claims. Accordingly, we find that Petitioner should have raised these matters to the full Board and we have limited our decision to those issues that he brought before the MSPB AJ, which the full Board affirmed.
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0320120019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120019