Joseph S. Sher, Petitioner,v.Alberto Gonzales, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0320070072 (E.E.O.C. May. 25, 2007)

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