03a60024
12-13-2005
Larry C. Holland, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry C. Holland v. USPS
03A60024
December 13, 2005
.
Larry C. Holland,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A60024
MSPB No. SF-0752-04-0772-I-1
DECISION
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 Mail Processing Clerk, alleged he was discriminated
against on the basis of reprisal when he was removed from his position
for unacceptable conduct. Specifically, petitioner engaged in a verbal
and physical confrontation with a female co-worker. The record indicates
that petitioner previously entered a last chance agreement for having
an altercation with a Manager, and thereafter served a probationary
period of eighteen months. The record indicates that with respect to the
incident at issue herein, petitioner and the co-worker got into a shouting
match and he attempted to grab the telephone from her, resulting in an
injury to her arm. Petitioner admitted to using inappropriate language
and there were witness statements regarding the altercation. Thereafter
petitioner was removed from his position and petitioner filed an appeal
with the MSPB. Following a hearing, the Administrative Judge (AJ) found
that the testimony of the female and agency officials was more credible
than that of petitioner. Specifically, the AJ found that petitioner's
testimony was �inconsistent, contradictory, implausible, and on the whole
unworthy of belief.� With respect to petitioner's reprisal claims, the
AJ found that petitioner could establish a prima facie case, but that he
failed to show the officials were motivated by retaliatory animus. In
effect, petitioner failed to show a nexus between his EEO activity and
the agency's actions or that the actions were a pretext for reprisal
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
concerning the collective bargaining agreement.
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
December 13, 2005
__________________
Date