0320080112
12-24-2008
Kelvin E. Baker, Petitioner, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Kelvin E. Baker,
Petitioner,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Petition No. 0320080112
MSPB No. AT0752070298I2
DECISION
On September 18, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final 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 bases of
race (Black), color (unspecified), and reprisal for prior protected
EEO activity under Title VII when he was demoted from the position of
Supervisory Air Traffic Control Specialist, AT-2152-LJ, to the position of
Air Traffic Control Specialist, AT-2152-LH, effective December 10, 2006.
The record reflects that the agency demoted petitioner based on the charge
of conduct unbecoming a supervisor. In its notice of proposed demotion,
the agency described its charge as follows:
Specifically, on February 10, 2006, at approximately 1:15 p.m., while
ascending the stairs in the rear stairwell, you and a subordinate's
shoulders collided. The subordinate, a controller at the tower, was
descending the stairs. You followed the subordinate down the stairs,
and in a loud and aggressive tone, stated something to the effect of
"I've been wanting this a long time. Let's step outside, you and
me, right now and finish this." Regardless of who bumped into whom,
your comments toward the subordinate concerning stepping outside were
completely inappropriate as a supervisor.
Further review of the record reveals that during prehearing conferences
with the parties on November 16 and 29, 2007, petitioner stipulated to
this characterization of the February 10, 2006 incident. The agency's
account of petitioner's conduct is further supported by the consistent
written statements of the subordinate involved and the Operations
Supervisor who overheard the altercation. The record also reveals that
petitioner has a history of "exhibiting an inability to get along with
others within and outside the agency."
Following a hearing, the Administrative Judge (AJ) found that the
testimony of agency officials was more credible than that of petitioner.
Of note, petitioner's immediate supervisor stated that several prior
attempts were made to correct petitioner's interpersonal behavior
with those in his work environment. Also, petitioner did not deny
his inappropriate behavior indicated in the record. With respect to
petitioner's claims of race, color and reprisal discrimination, the
AJ found that petitioner failed to show that agency officials were
motivated by discriminatory/retaliatory animus. The AJ noted that
the record supports the charges of misconduct brought by the agency.
In effect, petitioner failed to show a nexus between his EEO activity
and the agency's actions or that the actions were a pretext for unlawful
discrimination. Petitioner sought review by the full Board, but the
Board denied petitioner's petition for review. Thereafter petitioner
filed the instant petition with the Commission, where he made arguments
mainly asserting that a second-level supervisor, who is not responsible
for his demotion, conspired to retaliate against him.
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 (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 (Z1008)
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 24, 2008
__________________
Date
Date
2
0320080112
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080112