0320070072
05-25-2007
Joseph S. Sher, Petitioner, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Joseph S. Sher,
Petitioner,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Petition No. 0320070072
MSPB No. SF0731060417I1
DECISION
Petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of a decision issued by the Merit Systems
Protection Board (MSPB) concerning his claim of discrimination alleging
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
In his appeal to the MSPB, petitioner alleged that he was discriminated
against on the bases of race (Asian American) and reprisal for prior
protected EEO activity when he was found to be unsuitable for the position
of Deputy U.S. Marshal (DUSM) and his application for employment was
rated ineligible. Petitioner had been previously employed by the agency
as a DUSM, but resigned in lieu of termination during his probationary
period in 2002, facing charges of misconduct involving failure to follow
instructions, failure to secure government property, and unacceptable
conduct toward classmates and during exercises. The agency rated
petitioner's application for reemployment as ineligible based on his
past history with the agency.
Petitioner waived his right to a hearing and a MSPB Administrative Judge
(AJ) issued an initial decision finding that petitioner did not contest
the charges in his August 9, 2002 termination letter. He noted that
to sustain a negative suitability determination the agency must show a
pattern of conduct that would be incompatible with or interfere with the
effective performance of duties. The AJ concluded that the misconduct
petitioner was charged with fell within these parameters. Lastly, the AJ
found that while petitioner's candor and honesty in taking responsibility
for his past behavior weighed in his favor, it was not conclusive
evidence of his rehabilitation, and was "significantly outweighed
by the seriousness and recency of his misconduct." With respect to
the discrimination allegations, the AJ found that petitioner did not
provide evidence or argument to support his claims of reprisal and race
discrimination.
Petitioner did not seek review of the initial decision, and it became
the Board's final decision. Petitioner filed a petition with the
Commission. The Commission notes that the decision did not give petitioner
appeal rights to the Commission and as such finds the petition timely. In
his petitioner, petitioner asserts he was treated differently than others,
but provides no specifics.
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
May 25, 2007
__________________
Date
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0320070072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070072