Judith A. McKoy, Petitioner,v.Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity CommissionFeb 2, 2004
03A40013 (E.E.O.C. Feb. 2, 2004)

03A40013

02-02-2004

Judith A. McKoy, Petitioner, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.


Judith A. McKoy v. Department of Transportation

03A40013

February 2, 2004

.

Judith A. McKoy,

Petitioner,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Petition No. 03A40013

MSPB No. AT-0752-01-0717-I-1

DECISION

On September 29, 2003, 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

her 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 alleged that she was discriminated against on the basis of

reprisal (prior protected activity under Title VII) when: (1) she

was suspended for 30 days effective June 11, 2001; and (2) she was

reassigned form her position of Supervisor, Human Resources Management

Section, ASO-421, FV-301-J, to that of Management Analyst, FV-343-J,

AAF Evaluation Staff, effective August 12, 2001.

Petitioner was suspended and reassigned based on two charges of

misconduct: (1) unauthorized possession of government documents, and (2)

inappropriate conduct. Petitioner timely filed a mixed case appeal with

the MSPB. After a hearing, the MSPB Administrative Judge upheld the first

charge, but dismissed the second charge. The MSPB AJ nonetheless upheld

the suspension and reassignment finding, in relevant part, that petitioner

had not established her affirmative defense of reprisal discrimination.

In particular, the MSPB AJ found a lack of evidence of retaliatory animus

on the part of the official who proposed and issued the suspension and

reassignment, expressly noting her credibility as a witness. The Board

denied petitioner's petition for 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).

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

February 2, 2004

__________________

Date