0320090026
02-25-2009
David Barnett, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Barnett,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090026
MSPB No. CH0752080413I1
DENIAL OF CONSIDERATION
On November 18, 2008, 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.
At the time of the events at issue, petitioner was employed by the agency
as a Mailing Requirements Clerk at the Main Post Office in Indianapolis,
Indiana. Petitioner was removed from agency employment, effective
February 4, 2008, on the charge of failure to follow instructions/failure
to follow a direct order. He filed an appeal of his removal directly to
the MSPB, alleging, among other things, that he was discriminated against
on the basis of reprisal for prior protected EEO activity under Title VII
A hearing was held and thereafter a MSPB Administrative Judge (AJ) issued
an initial decision finding no reprisal. Petitioner next sought review
by the full Board, and in a decision dated October 15, 2008, the Board
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).
The MSPB AJ found that petitioner went to his workplace on a day that he
was not scheduled to work in order to go to the credit union located at
the facility and meet up with a colleague to give him some money before
that employee's shift started. Petitioner's supervisor saw him at the
facility and, upon finding out that petitioner was on leave, instructed
him to leave the building. Petitioner did not immediately leave the
premises, instead asking why he had to leave.1 The supervisor left the
area, returning sometime later to issue additional orders/instructions
telling petitioner to leave, at one point telling petitioner "you cannot
be in the building if you are not working." Petitioner left the building
sometime within 30 minutes from his first encounter with the supervisor.
However, as a result of this incident, the supervisor issued petitioner
a notice of proposed removal for failure to follow instructions/failure
to follow a direct order. The proposed removal was later upheld by
another management official and became effective on February 4, 2008.
With regard to petitioner's claim of unlawful retaliation in violation of
Title VII, the AJ found petitioner acknowledged that the actual deciding
official, who upheld the proposed removal, was not personally motivated
by reprisal. Instead, the AJ determined that petitioner was claiming
that supervisor's actions in ordering him to leave the premises were
based on reprisal and that other employees were allowed to remain on the
premises when they were not working. The AJ further found that the MSPB
does not have jurisdiction over such an allegation because ordering an
employee to leave a building is not an adverse employment action under
the jurisdiction of the MSPB. The AJ determined that petitioner had
not adequately asserted that there was a genuine nexus between his prior
protected activity and the removal decision itself.
In reviewing this case, the Commission disagrees with the MSPB AJ's
characterization of petitioner's reprisal claim as it relates to the
removal itself. While it is true that petitioner conceded during a
Prehearing Conference that he was not alleging retaliation on the part
of final deciding official, our reading of the record indicates that
petitioner was clearly asserting that his supervisor was motivated by
unlawful retaliation when he issued the instructions/orders that formed
the sole basis for the removal action and are inextricably intertwined
with it. Significantly, a fair reading of the record also reveals that
petitioner was claiming that the supervisor was motivated by reprisal when
he initiated the removal action as a result of the incident by issuing
the notice of proposed removal. This is sufficient to raise a claim that
the removal process itself was tainted with unlawful retaliatory animus.
However, it is not the Commission's role to review the MSPB's decisions
concerning its own jurisdiction. When the MSPB has denied jurisdiction
in such matter, the Commission has held in the past that there is little
point in continuing to view the matter as a "mixed case" as defined by 29
C.F.R. � 1614.302(a). Thus, the case will be considered a "non-mixed"
matter and processed accordingly. See generally Schmitt v. Dept. of
Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips
v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 2990); 29
C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles,
Petition No. 0320090026 is hereby administratively closed, and the matter
is referred to the agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised that by operation of 29 C.F.R. � 1614.302(b), the
agency is required to process his allegations of unlawful reprisal when he
was removed from the agency effective February 4, 2008, as a "non-mixed"
matter pursuant to 29 C.F.R. � 1614.105 et seq. The agency shall notify
petitioner in writing of the right to contact an EEO counselor within
forty five (45) days of receipt of the notification, and to file an EEO
complaint, subject to 1614.107. The date on which petitioner filed the
appeal with the MSPB shall be deemed the date of initial contact with
an EEO counselor. In the alternative, petitioner has the right to file
a civil action as detailed below.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 25, 2009
__________________
Date
1 Among other things, petitioner argued that he was entitled to discuss
instructions from his supervisor before following them under the express
terms of a 2003 settlement agreement resolving a prior EEO complaint.
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0320090026
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090026