0320080049
05-08-2008
Jack Neuman, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jack Neuman,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320080049
MSPB No. DE0752050291I3
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a Opinion and 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 he was removed from his position of Plant Manager
for alleged misconduct. Briefly, the agency charged petitioner with (1)
unacceptable conduct; (2) improper influencing of employee's testimony;
(3) appearance of impropriety; and (4) failure to follow proper
procedures.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that petitioner was not retaliated
against as alleged. However, the AJ found that the agency did not
support charges 1, 2 and 3 against petitioner. The AJ upheld charge 4,
and reduced the removal to a demotion. The agency filed a petition for
review with the full Board. In its Opinion and Order, the Board noted that
petitioner did not challenge the finding regarding his retaliation claims.
The Board went on to address charge 3, and found that the AJ had erred
in his analysis. Thus, the Board found that the agency had proved the
charge. As a result, the Board found that removal was the appropriate
penalty. Petitioner then filed his petition with 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).
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. Petitioner failed to show that the agency's reasons for
removing him were a pretext for retaliation. 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 (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 (Z0408)
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 8, 2008
__________________
Date
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0320080049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080049