0320090019
01-15-2009
Marla W. Hunter, Petitioner, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Marla W. Hunter,
Petitioner,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Petition No. 0320090019
MSPB No. CB7121080012V1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a Opinion and 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 reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when she was removed from her position of
WS-8 Maintenance Worker Supervisor with the Federal Bureau of Prisons,
Federal Correctional Institution, Fort Dix, New Jersey. Petitioner
was removed on the charges of: giving the appearance of having an
inappropriate relationship with an inmate; giving the appearance of
having an inappropriate relationship with an inmate's family member;
failure to report contacts with an inmate; failure to report contacts
with former inmate(s) and/or family members; unauthorized dissemination
of information; and for the release of information which could breach
the security of the institution. Briefly, the MSPB indicated that
the record established that petitioner corresponded with an inmate in
another facility, passing messages to him through a family member. The
inmate was, at one time, under petitioner's supervision on a work crew.
Petitioner did not report the contacts and relationships to management
as required by agency policy and she released non-public information
regarding the inmate to the inmate's family. Agency management also
asserted that, while corresponding with the inmate, petitioner discussed
several events that had occurred at her facility that could have been
used by inmates to breach security.
Petitioner grieved her removal and the matter went to arbitration. After
a hearing, the Arbitrator found sufficient evidence to sustain all
the charges against petitioner, and upheld the removal decision. The
Arbitrator further found that petitioner did not prove her claim of
reprisal. In effect, the Arbitrator found that petitioner did not show
that the agency's reasons for removing her were a pretext for reprisal.
Petitioner appealed the Arbitrator's decision to the MSPB. In its Opinion
and Order, the Board found that petitioner failed to show that the
Arbitrator erred as a matter of law regarding the charges against her,
in determining the penalty, and with respect to her reprisal claims.
The Board sustained the Arbitrator's decision in full.
EEOC regulations provide that the Commission has jurisdiction over 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
January 15, 2009
__________________
Date
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0320090019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090019