0320090058
08-12-2009
Ann M. Swartz, Petitioner, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Ann M. Swartz,
Petitioner,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Petition No. 0320090058
MSPB No. DA0752080059I2
DECISION
On May 5, 2009, 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 reprisal for prior protected EEO activity under Title VII when,
effective May 12, 2007, she was removed from her position as a Program
Support Assistant.
The record reflects that in the Notice of Proposed Removal, the agency
stated that petitioner's conduct was unacceptable. According to the
record, petitioner's removal was based on three charges: disruptive
conduct; making an unfounded accusation about a co-worker; and failure
to follow supervisory instructions.
Further review of the record reveals that petitioner became disruptive
in an October 3, 2006 meeting and ultimately threatened to "mace"
an administrator if approached by him concerning work-related matters.
Petitioner also became disruptive in a subsequent meeting held on November
15, 2006. The agency determined that petitioner was both uncooperative
and unsuccessful in the completion of various assigned tasks. The agency
ultimately removed petitioner based on misconduct and unsatisfactory
performance. The agency concluded that, despite its best efforts to
improve petitioner's conduct, petitioner's workplace behavior remained
combative.
Following a hearing, the Administrative Judge (AJ) found that the
testimony of agency witnesses was more credible than that of petitioner.
With respect to petitioner's claims of reprisal discrimination, the AJ
found that petitioner failed to show that agency officials were motivated
by discriminatory animus. The AJ maintained that the record supports
petitioner's removal by the agency. In effect, petitioner failed to show
a nexus between her prior EEO activity and the agency's actions or that
the actions were a pretext for unlawful discrimination. Petitioner sought
review by the full Board, but the Board denied petitioner's petition
for review. Thereafter petitioner filed the instant petition with the
Commission, where she mainly asserts that the AJ applied an erroneous
standard of review.
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
August 12, 2009
__________________
Date
2
0320090058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090058