Linda P. Danner, Petitioner,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 2, 2007
0320070039 (E.E.O.C. Feb. 2, 2007)

0320070039

02-02-2007

Linda P. Danner, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Linda P. Danner,

Petitioner,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Petition No. 0320070039

MSPB No. SF0752050566I2

DECISION

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 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 alleged that she was discriminated against on the basis of sex

(female) when she was removed from her position of Club Manager, GS-12,

on a charge of "continuously falsifying government documents." Briefly,

petitioner was charged with directing the time keeper to give the Head

Chef night differential and overtime, in addition to regular hours,

each pay period between the years 2000-2005, regardless of the hours he

worked. An investigation by the agency found discrepancies between the

times the Chef clocked in and the hours recorded and paid.1 A hearing

was held and thereafter an MSPB Administrative Judge (AJ) issued an

initial decision finding that there was no discrimination. The AJ

noted that petitioner was not similarly situated to the male to whom

she compared herself because she supervised him, and that she failed

to show that the agency's reasons for her removal were a pretext

for discrimination.2 The Commission notes that the AJ did not find

petitioner credible. Petitioner sought review by the Full Board which

denied her request. Petitioner then filed the instant petition.

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

February 2, 2007

__________________

Date

1 The Chef is now deceased.

2 Both the comparative employee (an assistant manager) and the time

keeper were under petitioner's supervision. The male employee (who was

not disciplined) also signed off on numerous time and attendance records

for the Chef, but he attempted to raise the issue with others. He also

testified that he attempted to raise the matter with petitioner, to no

avail.

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0320070039

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0320070039