03a60034
02-14-2006
Frank Black, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Black v. United States Postal Service
03A60034
February 14, 2006
.
Frank Black,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A60034
MSPB No. AT-0752-05-0207-I-1
DECISION
On December 7, 2005, 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.
Petitioner, a supervisor of Customer Services with the agency's
Myrtle Beach, South Carolina postal facility, alleged that he was
discriminated against on the basis of race (African-American), when on
April 7, 2004, he was issued a notice by his supervisor proposing his
removal for unacceptable conduct, specifically, falsifying employee
clock rings and failure to cooperate during a postal investigation.
The record reflects that petitioner had routinely allowed two employees
to leave early on Saturdays, and subsequently would enter clock rings
indicating that they had worked a full eight hours. The record also
reflects that this practice went on for approximately a year before
an internal investigation was conducted, and these employees were
paid over $4000.00 in salary for hours they did not actually work.
Petitioner admitted to falsifying employee clock rings, and there were
witness statements regarding the account. Concerning the investigation,
the record reveals that after approximately a half-hour of protestations
and avoidance, petitioner agreed to meet with investigators and respond
to their inquiries. Thereafter petitioner received a notice of removal,
and petitioner filed an appeal with the MSPB.
Following a hearing, the Administrative Judge (AJ) found that the
testimony of the witnesses involved, including agency officials,
was more credible than that of petitioner. Specifically, the AJ
found that by petitioner's own admission, he falsified time records.
With respect to petitioner's race claim, the AJ found that petitioner
did not establish a prima facie case, but assuming arguendo that he
had, petitioner failed to show that agency officials were motivated by
discriminatory animus. In effect, petitioner failed to show a nexus
between his race and the agency's actions or that the actions were
a pretext for unlawful discrimination. Petitioner sought review by
the full Board, but the Board denied petitioner's petition for review.
Thereafter petitioner filed the instant petition with the Commission,
where he made arguments mainly asserting that other similarly situated
supervisors had engaged in similar conduct without discipline, however,
petitioner fails to proffer evidence which shows that these supervisors
had made entries for time employees did not work.
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).
Based upon a thorough review of the record and for the foregoing reasons,
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 (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
February 14, 2006
__________________
Date