0320080105
09-18-2008
Brian Israel, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Brian Israel,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 0320080105
MSPB No. NY0752070296I1
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.
In an appeal before the MSPB, petitioner alleged that he was discriminated
against on the bases of national origin (Canadian) and religion (Jewish)
when he was removed from his position of Customs and Border Protection
Officer, GS-11, effective July 10, 2007, on the charges of conduct
unbecoming an officer, failure to follow supervisory instructions,
and lack of candor.
A hearing was held, and thereafter a MSPB Administrative Judge (AJ) issued
an initial decision sustaining the removal. The AJ upheld the charges of
conduct unbecoming an officer arising from an incident where petitioner
was found to have used excessive force on the driver of a vehicle he
was inspecting at the Canadian border. The AJ also sustained the charge
of lack of candor concerning an incident where petitioner is alleged to
have used obscene language when yelling at another driver at the border
checkpoint. The AJ determined that the agency failed to sustain its
third charge of failure to follow supervisory instructions. However, the
AJ determined that the other two sustained charges supported the penalty
of removal. The AJ also concluded that petitioner did not prove his
claims of discrimination.1 Petitioner sought review by the full Board,
which denied his petition. Petitioner then filed the instant petition.
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 (W0408)
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 (Z0408)
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 18, 2008
__________________
Date
1 In addition to his claim of discrimination concerning his removal,
petitioner raised claims of a hostile work environment that included
anti-Semitic comments being made by coworkers. The AJ concluded that
the MSPB had no jurisdiction over this claim and such matters need to be
addressed through the EEO complaint process. The AJ noted that petitioner
had been informed by the agency about the EEO process as a forum for
these claims, but he did not file an EEO complaint on the matter.
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0320080105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080105