David Barnett, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 25, 2009
0320090026 (E.E.O.C. Feb. 25, 2009)

0320090026

02-25-2009

David Barnett, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


David Barnett,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 0320090026

MSPB No. CH0752080413I1

DENIAL OF CONSIDERATION

On November 18, 2008, 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.

At the time of the events at issue, petitioner was employed by the agency

as a Mailing Requirements Clerk at the Main Post Office in Indianapolis,

Indiana. Petitioner was removed from agency employment, effective

February 4, 2008, on the charge of failure to follow instructions/failure

to follow a direct order. He filed an appeal of his removal directly to

the MSPB, alleging, among other things, that he was discriminated against

on the basis of reprisal for prior protected EEO activity under Title VII

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

an initial decision finding no reprisal. Petitioner next sought review

by the full Board, and in a decision dated October 15, 2008, the Board

denied his petition. Petitioner then filed the instant petition.

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).

The MSPB AJ found that petitioner went to his workplace on a day that he

was not scheduled to work in order to go to the credit union located at

the facility and meet up with a colleague to give him some money before

that employee's shift started. Petitioner's supervisor saw him at the

facility and, upon finding out that petitioner was on leave, instructed

him to leave the building. Petitioner did not immediately leave the

premises, instead asking why he had to leave.1 The supervisor left the

area, returning sometime later to issue additional orders/instructions

telling petitioner to leave, at one point telling petitioner "you cannot

be in the building if you are not working." Petitioner left the building

sometime within 30 minutes from his first encounter with the supervisor.

However, as a result of this incident, the supervisor issued petitioner

a notice of proposed removal for failure to follow instructions/failure

to follow a direct order. The proposed removal was later upheld by

another management official and became effective on February 4, 2008.

With regard to petitioner's claim of unlawful retaliation in violation of

Title VII, the AJ found petitioner acknowledged that the actual deciding

official, who upheld the proposed removal, was not personally motivated

by reprisal. Instead, the AJ determined that petitioner was claiming

that supervisor's actions in ordering him to leave the premises were

based on reprisal and that other employees were allowed to remain on the

premises when they were not working. The AJ further found that the MSPB

does not have jurisdiction over such an allegation because ordering an

employee to leave a building is not an adverse employment action under

the jurisdiction of the MSPB. The AJ determined that petitioner had

not adequately asserted that there was a genuine nexus between his prior

protected activity and the removal decision itself.

In reviewing this case, the Commission disagrees with the MSPB AJ's

characterization of petitioner's reprisal claim as it relates to the

removal itself. While it is true that petitioner conceded during a

Prehearing Conference that he was not alleging retaliation on the part

of final deciding official, our reading of the record indicates that

petitioner was clearly asserting that his supervisor was motivated by

unlawful retaliation when he issued the instructions/orders that formed

the sole basis for the removal action and are inextricably intertwined

with it. Significantly, a fair reading of the record also reveals that

petitioner was claiming that the supervisor was motivated by reprisal when

he initiated the removal action as a result of the incident by issuing

the notice of proposed removal. This is sufficient to raise a claim that

the removal process itself was tainted with unlawful retaliatory animus.

However, it is not the Commission's role to review the MSPB's decisions

concerning its own jurisdiction. When the MSPB has denied jurisdiction

in such matter, the Commission has held in the past that there is little

point in continuing to view the matter as a "mixed case" as defined by 29

C.F.R. � 1614.302(a). Thus, the case will be considered a "non-mixed"

matter and processed accordingly. See generally Schmitt v. Dept. of

Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips

v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 2990); 29

C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles,

Petition No. 0320090026 is hereby administratively closed, and the matter

is referred to the agency for further processing as outlined below.

NOTICE TO THE PARTIES

Petitioner is advised that by operation of 29 C.F.R. � 1614.302(b), the

agency is required to process his allegations of unlawful reprisal when he

was removed from the agency effective February 4, 2008, as a "non-mixed"

matter pursuant to 29 C.F.R. � 1614.105 et seq. The agency shall notify

petitioner in writing of the right to contact an EEO counselor within

forty five (45) days of receipt of the notification, and to file an EEO

complaint, subject to 1614.107. The date on which petitioner filed the

appeal with the MSPB shall be deemed the date of initial contact with

an EEO counselor. In the alternative, petitioner has the right to file

a civil action as detailed below.

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

February 25, 2009

__________________

Date

1 Among other things, petitioner argued that he was entitled to discuss

instructions from his supervisor before following them under the express

terms of a 2003 settlement agreement resolving a prior EEO complaint.

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0320090026

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0320090026