0320090029
03-04-2009
Jamal Al-Faleh, Petitioner, v. Arne Duncan, Secretary, Department of Education, Agency.
Jamal Al-Faleh,
Petitioner,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Petition No. 0320090029
MSPB No. DC0752080011I1
DECISION
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.
Petitioner alleged that he was discriminated against on the bases of
national origin (Jordanian), religion (Muslim), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of
1964 when he was removed from his position of Information Technology
Specialist (Network), GS-14. Petitioner was removed on a charge of
conduct prejudicial to the Federal government. Briefly, petitioner was
alleged to have run password-cracking programs in a manner contrary to
the agency's policies.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that petitioner's violation of the
portion of the policy requiring that the task be done in the presence of
others was not intentional. Nonetheless, because the policy had a strict
liability and did not mention intention, the AJ found that petitioner
violated the policy. However, the AJ also noted that petitioner's failure
to run the password cracking programs in a secure, controlled environment
was because the agency had never provided such a space. As to storing
a spread sheet with password violations on his computer, the AJ noted
that petitioner was ordered to provide the information for an Office
of Inspector General audit, and to auditors of a contractor. Finally,
with respect to petitioner's discrimination and retaliation claims, the
AJ noted that the removal action stemmed from a zero tolerance policy
and that petitioner did not support his reprisal claim.
However, the AJ determined that in imposing the penalty of termination,
the agency did not properly take into consideration mitigating factors.
Therefore, the AJ mitigated the removal to a 20-day suspension.
Petitioner sought review by the full Board. In its Order, the Board
noted that two members could not agree on the disposition of the case
and the initial decision became the Board's final decision.
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
March 4, 2009
__________________
Date
2
0320090029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090029