0320070071
05-17-2007
Charles E. Cook, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Charles E. Cook,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 0320070071
MSPB No. CH-0752-05-0830-I-1
DECISION
On April 19, 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 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 alleged that he was discriminated against on the basis of
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when effective July 28, 2005, petitioner was removed
from his Training Instructor position at the agency's facility at Fort
Campbell, Kentucky. The record indicated that petitioner was removed
based on a charge of conduct unbecoming a federal employee. Specifically,
the proposed removal action noted that in early December 2004, while
petitioner was on duty at the flight simulation center, petitioner stated
that "to be hired at Fort Campbell," a person "had to be a Nigger or
some other minority." The agency indicated that the statement was made
in the presence of two other employees who were offended at the use of
the racial epithet. Based on petitioner's past disciplinary record,
the agency determined that removal was the appropriate action.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that the agency failed to prove
by preponderant evidence that petitioner made the remark attributed
to him. Further, the MSPB AJ determined that petitioner substantiated
his affirmative defenses of harmful procedural error on the part of
the agency and reprisal for prior EEO activity as well as grievances
and whistleblowing. The MSPB AJ then found that the agency could not
show by "clear and convincing evidence" that the agency could have
effected petitioner's removal in the absence of the motivation to
retaliate against petitioner. Therefore, the MSPB AJ concluded that
the agency could not sustain the removal action. The MSPB AJ ordered,
among other things, that the agency cancel the removal action.
The agency filed a petition for review with the MSPB Board asserting that
the MSPB AJ's decision was in error and that new material evidence would
show that petitioner did not substantiate his affirmative defenses.
The Board granted the agency's decision. The Board affirmed the
MSPB AJ's initial decision in part and reversed the decision in part.
The Board found that the removal action could not be sustained. However,
the Board reviewed evidence submitted by the agency in support of the
petition for review. The Board noted that petitioner did not deny
having used the word "nigger" in the presence of the two other agency
employees. He denied that the term was used as described by the agency
in the removal action. The new evidence provided by the agency in its
petition was an affidavit from the EEO Officer at the agency's facility.
The affidavit indicated that petitioner had enlisted the EEO Officer's
assistance. During their discussion of the events, petitioner told the
EEO Officer that he had made the statement alleged in the removal action
due to his frustration with the observation that minorities seemed to
be the only people being promoted. Therefore, the EEO Officer decided
not to vouch for the character of a person who he now believed to harbor
racist sentiments. The Board refused to reopen the record based on the
affidavit noting that the agency could have provided such evidence before
the MSPB AJ. However, as to petitioner's claim of reprisal, the Board was
not persuaded that petitioner established that the decision to remove him
constituted reprisal for any protected activity. The Board determined
that the deciding official did not have the motive to retaliate against
petitioner for his complaints noting that the deciding official was not
implicated in petitioner's complaint. Accordingly, the Board reversed
the MSPB AJ's finding of unlawful retaliation. However, the Board still
ordered the agency to cancel its removal action, to pay petitioner back
pay, and to provide petitioner's attorneys fees and costs.
This petition before the Commission followed.
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 Order and Opinion of the Board 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
May 17, 2007
__________________
Date
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0320070071
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070071