Mark R. Malouse, Petitioner,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 24, 2007
0320070073 (E.E.O.C. May. 24, 2007)

0320070073

05-24-2007

Mark R. Malouse, Petitioner, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Mark R. Malouse,

Petitioner,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Petition No. 0320070073

MSPB No. AT0752060293I1

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 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

(Caucasian), sex (male), religion (Catholic), and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when he was removed from his position of Pharmacist, GS-11. The record

indicates that petitioner was removed for four incidents of failure to

follow standard operating procedures, and conduct unbecoming a supervisor.

The agency also took into consideration three prior disciplinary actions.

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

an initial decision finding no discrimination or reprisal. The AJ upheld

the charges against petitioner and found the penalty of removal was

reasonable. The AJ noted that petitioner failed to support his allegations

of discrimination or reprisal. Petitioner sought review by the full Board

which denied his request. Petitioner then filed the instant petition,

raising many of the same arguments that he made before the Board.

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 failed

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

discrimination or reprisal. 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 24, 2007

__________________

Date

2

0320070073

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036