0320100043
08-06-2010
Kathryn McCorkle, Petitioner, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Kathryn McCorkle,
Petitioner,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Petition No. 0320100043
MSPB No. CH0752090417I1
DECISION
Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of an Initial 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. Petitioner did not seek review of the initial decision, and it became the Board's final decision.
In an appeal filed with the MSPB, Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when she was demoted from the position of Supervisory Correctional Officer, Lieutenant, GS-11 to Correctional Officer, GS-9. Petitioner was demoted on charges of failure to respond effectively in an emergency situation.
A hearing was held on the appeal, and thereafter an MSPB Administrative Judge (AJ) issued an initial decision upholding the demotion and finding that Petitioner failed to prove her claim of reprisal.
Briefly, the MSPB AJ found that another correctional officer encountered an emergency situation with an inmate and pressed his body alarm. Petitioner and another Lieutenant (L2) responded. However, the inmate started spraying a fire extinguisher, and Petitioner and L2 retreated, leaving the correctional officer alone. The inmate attacked the correctional officer, who was injured. Eventually the correctional officer was able to subdue the inmate, and another person came to assist the correctional officer. Both Petitioner and L2 were demoted as a result of this incident.
The MSPB AJ determined, based on this evidence, that Petitioner failed to provide evidence showing that retaliation was a motivating factor in the demotion decision, and failed to establish a nexus between the alleged retaliation and the demotion. The MSPB AJ found Petitioner's testimony less credible than that of the correctional officer that she failed to assist. The AJ found that Petitioner put her own safety above that of a subordinate officer, noting that there were 87 inmates who were not secured in their cells in the area of the attack. The MSPB AJ concluded that the Agency's proffered reasons for the demotion decision were legitimate and non-discriminatory, and Petitioner did not offer adequate evidence proving otherwise.
Petitioner then filed the instant petition.1
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. A review of the record shows that Petitioner has failed to show that the Agency's reasons for demoting her 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 (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
August 6, 2010
__________________
Date
1 The Initial Decision became final on September 29, 2009, and Petitioner filed her appeal with this Commission in June 2010. However, although the MSPB AJ ruled on Petitioner's reprisal claim, no appeal rights from that decision to this Commission were provided to Petitioner. The reprisal claims were premised on filing a prior EEO complaint. As such, the Commission finds good cause to waive the time limits for the instant petition.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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