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