Charles E. Cook, Petitioner,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 17, 2007
0320070071 (E.E.O.C. May. 17, 2007)

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