0320070095
09-14-2007
Carolyn Slaughter, Petitioner, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Carolyn Slaughter,
Petitioner,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320070095
MSPB No. DC-0752-06-0624-I-1
DECISION
On July 12, 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 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
Petitioner alleged that she was discriminated against on the bases of sex
(female) and disability (diarrhea) when, effective June 1, 2006, she was
removed from her position as a Program Technician with the agency's Farm
Service Agency. Petitioner was removed based on the charges of failure
to follow supervisory instructions and failure to observe designated
duty hours resulting in absence without leave.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding no discrimination. As to petitioner's
claim of sex-based discrimination, the MSPB AJ determined that petitioner
failed to establish a prima facie case of discrimination based on sex.
Specifically, the MSPB AJ found that petitioner failed to show that
she was similarly situated to another male employee; that the agency
officials harbored any animosity towards petitioner based on her sex;
and that sex otherwise played a part in the removal action. As such, the
MSPB AJ concluded that petitioner did not show that the removal action
constituted sex discrimination. As to petitioner's claim of disability
discrimination, the MSBP AJ found that petitioner's condition did not
constitute a disability covered under the Rehabilitation Act. Further,
the MSPB AJ noted that the agency attempted to accommodate petitioner by
offering to change her weekly work schedule and start time. As such,
the MSPB AJ determined that petitioner failed to show that the removal
action was discriminatory based on her alleged disability.
Petitioner filed a petition with the Board. The Board issued its Final
Order on June 19, 2007, denying petitioner's request. Petitioner then
filed the instant petition before the Commission.
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).
For the purposes of analysis, we assume petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1). 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 14, 2007
__________________
Date
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0320070095
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070095