0320090013
01-27-2009
Raymond Moctezuma, Jr., Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Raymond Moctezuma, Jr.,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090013
MSPB No. AT-0752-08-0452-I-1
DECISION
On November 6, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC) asking for review of a Final
Order issued by the Merit Systems Protection Board (MSPB or Board)
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 was a mail handler with the Miami Logistics and Distribution
Center in Miami, Florida. He claimed that he was discriminated against on
the bases of race (white), national origin (Hispanic), sex (male), color
(brown) and reprisal for prior protected EEO activity when he was removed
effective February 26, 2008, for unacceptable conduct. Petitioner was
charged as follows: he refused a supervisor's instruction to report
to Cell 00 for a task by stating in an aggressive and disrespectful
matter that he would not do so. After the supervisor returned with a
managerial witness and repeated the instruction, petitioner screamed and
yelled "what is your problem," and when the supervisor started to walk
away, petitioner said "come back here and talk like a man." When the
supervisor continued to walk away, petitioner repeatedly yelled "this
is your last warning." The supervisor felt threatened. Petitioner did
not go to Cell 00. The decision to remove referred to prior discipline,
i.e., a seven day suspension on March 7, 2007, for improper conduct; an
April 4, 2007, letter of warning for unsatisfactory performance; a July
12, 2007 fourteen day suspension for improper conduct; and a November 6,
2007, fourteen day suspension for failure to follow instructions.
Following a hearing an MSPB Administrative Judge (AJ) issued an initial
decision sustaining the charge, upholding the removal, and finding no
discrimination. Petitioner denied the charges. He denied refusing
to go to Cell 00 and speaking to the supervisor in an aggressive or
disrespectful manner. The AJ credited the supervisor's testimony
which supported the charge. In fact, the supervisor testified that he
instructed petitioner four or more times to go to Cell 00, to no avail.
In crediting the testimony, the AJ found it was corroborated by the
testimony of another mail handler who witnessed the exchanges, and
the manager the supervisor retrieved to witness the instruction to
petitioner.
The initial decision also found that the agency properly relied on
the prior discipline in removing petitioner. Further, petitioner has
not shown he was disparately treated. The Board denied petitioner's
petition for review. Thereafter, petitioner filed the instant petition.
By reference to his petition to the Board, petitioner appears to
argue that the agency should not have relied on the prior discipline.
While he made various arguments for why the agency should not have relied
on the prior discipline, he has not shown it did so for discriminatory
reasons.
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
January 27, 2009
__________________
Date
2
0320090013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090013