03a50052
08-05-2005
Deborah R. Harrison-Khatana, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah R. Harrison-Khatana v. United States Postal Service
03A50052
August 5, 2005
.
Deborah R. Harrison-Khatana,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A50052
MSPB No. DC-0752-04-0096-I-2
DECISION
On May 17, 2005, the 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. . The petitioner was a Labor
Custodian at an agency's Southern Maryland Bulk Mail Center in Capitol
Heights facility. She alleged that she was discriminated against on the
bases of sex (female), disability (Tissue damage and a pinched nerve)<1>
and reprisal for prior EEO when she was removed from her position as a
Labor Custodian.
The petitioner filed an appeal with the MSPB, and after it was dismissed
without prejudice, the petitioner refiled her appeal with the MSPB.
After a hearing, the Administrative Judge sustained the October 10,
2003 removal for improper conduct. The AJ concluded that the petitioner
failed to establish any of the allegations of discrimination. The AJ
found that the complainant had not established a prima facie case of
sex discrimination because she had not shown that males were treated
better or that she was similarly situated to other employees. The AJ
reasoned that, assuming that the petitioner established the elements
of a prima facie case of disability discrimination or reprisal, there
was no showing of a nexus or a showing of pretext. The Board denied
petitioner's petition for review.
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 (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
August 5, 2005
__________________
Date
1 For the purpose of analysis, we assume without finding that the
petitioner is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).