0320100054
12-20-2010
Jacqueline D. LaCour, Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Jacqueline D. LaCour,
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320100054
MSPB No. DA0752100313I1
DECISION
On September 15, 2010, Petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a decision 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.
On March 15, 2010, Petitioner filed an appeal with the MSPB from the
Agency's decision to remove her from her position of Agriculture Commodity
Grader, effective February 17, 2010, on charges of improper conduct.
Among other things, Petitioner alleged that her removal resulted from
discrimination against her on the bases of race (African-American)
and sex (female).
In her appeal, Petitioner did not request a hearing, and an MSPB
Administrative Judge (AJ) issued an initial decision upholding the
Agency's charges of improper conduct. Briefly, the AJ found that the
evidence indicated that Petitioner got into a verbal altercation with
a co-worker on November 13, 2009. Three days later, Petitioner got
into a physical altercation with the same employee, where they both
exchanged blows and bites, and Petitioner stabbed the other employee
with a "grader's pick." Management stated that it was unclear who
struck the other first in the fight. As a result of the altercations,
both employees were removed.
With respect to the verbal altercation of November 13, 2009, the
AJ found that the conversation between Petitioner and the co-worker
escalated to the point of being inappropriate and constituted improper
conduct. The AJ found that, with respect to the November 16, 2009
physical altercation, Petitioner's claim of self-defense did not excuse
her culpability. Moreover, the AJ found that the decision to remove
both Petitioner and the other employee involved was not motivated by
unlawful discrimination as alleged. The AJ determined that the employees
to whom Petitioner compared herself in an attempt to prove disparate
treatment worked in another state under different supervisors and were
not similarly situated.
Petitioner did not seek review of the initial decision, and it became
the Board's final decision. Petitioner then filed the instant petition
stating that she did not agree with the Board's decision.
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 compares herself to employees in another
state under different supervisors and managers. Under the circumstances
of this case, we find that Petitioner and the proffered comparators were
not similarly situated. Further, even if petitioner could set forth a
prima facie case of discrimination, she did not show that the Agency's
actions were a pretext for 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 (W0610)
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 (Z0610)
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
December 20, 2010
__________________
Date
2
0320100054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320100054