03A20034
04-16-2002
Ray N. Jackson, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Ray N. Jackson v. Department of the Air Force
03A20034
April 16, 2002
Ray N. Jackson,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A20034
MSPB No. DA 0752-00-0024-I-1 and DA 0752-00-0024-I-2
DECISION
On December 26, 2001, Ray N. Jackson (petitioner) filed with the Equal
Employment Opportunity Commission (EEOC or Commission) a petition
for review of the Merit Systems Protection Board (MSPB or Board)
Administrative Judge's (AJ) Initial Decision issued on October 22, 2001.
On February 13, 2002, MSPB issued an Opinion and Order, stating that
the Initial Decision of the AJ was final. Petitioner, an Electronics
Mechanic, WG 10-2604, at the agency's Sheppard Air Force Base, Texas,
alleged that he was subjected to race and color discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when, on July 29, 1999, he was
issued an official notification of proposed removal from his position.
Petitioner also claimed that the agency's action was in retaliation for
prior EEO activity (complaints filed under Title VII).
Petitioner filed a mixed case appeal with the MSPB. After a hearing,
the AJ found that the agency failed to meet its requisite burden of
proof that petitioner failed to request leave according to established
procedure, and failed to honor the denial of a leave request. The AJ
reversed the action of the agency and ordered relief for the petitioner.
Concerning petitioner's discrimination allegations, the AJ found that
petitioner failed to establish his affirmative defenses.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals in 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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c). Petitioner submitted a statement and exhibits
in support of his petition. The agency did not submit a response to
the Commission.
2
Petitioner's proposed removal was based on his alleged failure to
request leave according to established procedure, and failure to honor
a denial of a leave request. Petitioner asserted that he did not fail
to request leave according to established procedure, and did not fail
to honor a denial of a leave request. At the hearing, petitioner also
testified that he had alleged that he had been discriminated against,
and retaliated against constantly since his return to employment.<1>
While it was established that petitioner is a Black male with a
history of EEO complaints, petitioner did not provide, at the hearing,
any other evidence in support of his allegations of race, color,
or reprisal discrimination. The AJ found that petitioner failed to
identify any similarly situated individuals of another race or color
who were treated differently than petitioner; that petitioner failed to
show any causal connection between his race and/or color and the removal;
that petitioner failed to show that either the proposing or the deciding
official were the subjects of any of the petitioner's EEO complaints;
that the deciding officials testified that they would have taken the
same action whether or not the petitioner had engaged in any prior EEO
activity; and petitioner failed to submit evidence which would show that
there was a genuine connection between the alleged retaliation and his
removal. Thus, the AJ concluded that there was no merit to petitioner's
claim of race, color, or reprisal discrimination, and we agree.
In the instant petition for review, petitioner states that he did not
specifically believe that he had a legal responsibility to prove his
affirmative defenses, absent the agency proving its case. He felt
that the agency had not proven its case, and that he had no legal
requirement to prove his affirmative defenses. Petitioner alleges
that he was denied an opportunity to be advised concerning his burden
of proof and what evidence was required of him. Petitioner's position
is not well taken. The record reflects that petitioner was represented
by legal counsel. The record does not reflect that the AJ prohibited
petitioner or petitioner's counsel from presenting evidence to prove
petitioner's affirmative defenses and establish race, color, or reprisal
discrimination.
Petitioner also raised an allegation of whistle-blowing and in the instant
petition requests that the Commission remand the matter for further
consideration on the issue of whistle-blowing. It is well settled that
engaging in whistle-blowing is not protected EEO activity. See Reavill
v. Department of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
Therefore, reprisal for whistle-blowing as a basis for petitioner's
allegations will not be considered by the Commission.
After a careful review of the record, and considering arguments and
evidence not specifically discussed in this decision, we find that
petitioner has failed to establish by a preponderance of the evidence
that his race, color, or prior EEO activity motivated the proposed
removal from his position.
3
Accordingly, 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. The Commission CONCURS with the MSPB's finding of no
discrimination.
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
April 16, 2002
Date
4
1 In 1989, petitioner was restored to his
position after a successful EEO complaint process.