0320070113
09-21-2007
James R. Hicks, Petitioner, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
James R. Hicks,
Petitioner,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320070113
MSPB No. SF-0752-06-0302-I-1
Agency No. 200N-0612-2004103491
DECISION
On August 22, 2007, 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 was employed as a Supervisory Police Officer at a California
medical center of the agency. Effective April 23, 2004, the agency
removed petitioner from agency employment, citing "Conduct unbecoming
of a Supervisory [Agency] Police Officer" and "Inappropriate release
of information." On August 20, 2004, petitioner filed a mixed case
complaint with the agency alleging that the agency discriminated against
him on the bases of race (Caucasian) and sex (male) when it terminated
his employment following continuous harassment and disparate treatment
during his employment. Following an investigation of the mixed case
complaint, the agency issued a final decision finding no discrimination.
On January 26, 2006, petitioner filed an appeal of the final agency
decision with the MSPB.
At the MSPB, a hearing was held and, thereafter, an MSPB Administrative
Judge issued an Initial Decision affirming the agency's action and finding
that petitioner failed to establish his asserted affirmative defense of
discrimination based on race or sex. Petitioner sought review of the
Initial Decision by the full Board. The Board denied his petition in
a Final Order dated July 20, 2007. Petitioner then filed the instant
petition.
EEOC Regulations provide that the Commission has jurisdiction over
appeals of a final agency decision on a mixed case complaint, on which
the MSPB has issued a decision that makes determinations on allegations of
discrimination. 29 C.F.R. � 1614.303(a). 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, 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
September 21, 2007
__________________
Date
2
0320070113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320070113