0320090074
08-20-2009
Jerome Deas, Petitioner, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Jerome Deas,
Petitioner,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Petition No. 0320090074
MSPB No. AT-0752-07-0563-B-1
DECISION
On June 8, 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 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 is an Air Traffic Controller at the agency's Air Traffic
Control Tower in Charleston, South Carolina. He alleged that he
was discriminated against on the basis of race (African American)
when, effective March 5, 2007, he was placed on enforced leave during
an ongoing investigation. The record indicates that in late 2006,
the agency's Accountability Board was investigating allegations that
petitioner made derogatory racial and religious remarks creating an
intimidating environment. While it appears that petitioner was initially
placed on paid administrative leave, prior to the Accountability Board's
final determination, petitioner's Front Line Manager (Manager) issued a
January 26, 2007 notice proposing to place petitioner on enforced leave
without pay for 30 days. Specifically, the Manager took the action
based on petitioner's remark that he was "going to [his] car to get
[his] gun." Petitioner was given 15 days to reply. In March 2007,
while a final decision on the proposed enforced leave was pending,
petitioner's administrative leave status was changed to sick leave.
On April 19, 2007, petitioner was informed that the change from paid
administrative leave to sick leave was done erroneously. The agency
changed petitioner's leave status back to administrative leave, restored
his sick leave and corrected its records.
During this time, petitioner filed an appeal with the MSPB on March 26,
2007, alleging discrimination when he was placed on enforced leave
during the investigation by the Accountability Board. The agency
moved to dismiss the appeal as moot. An initial decision was issued
on October 16, 2007, dismissing the matter as moot. On May 12, 2008,
the MSPB remanded the matter back for further processing related to
whether petitioner's suspension was completely rescinded and his claim
of discrimination. The Board wanted to explore whether the agency had
completely rescinded petitioner's constructive suspension and whether
his claim of discrimination was non-frivolous.
On December 24, 2008, the MSPB AJ issued an initial decision finding that
because the agency rescinded the action, the matter was moot. However,
in determining mootness, the AJ looked at petitioner's discrimination
claim. The AJ found that petitioner did not establish a prima facie case
of race discrimination. Specifically, the MSPB AJ found that petitioner
failed to proffer similarly situated employees who were engaged in similar
misconduct during the course of an ongoing investigation. The MSPB
AJ's decision did not give petitioner appeal rights to the Commission.
Petitioner filed an appeal with the Board. The Board members could not
agree on the disposition of the petition. Therefore, on May 19, 2009,
the Board issued its Order stating that the MSPB AJ's decision became the
MSPB's final decision. It is from this Order, this petition followed.
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 correctly
determined that petitioner failed to establish his claim of race-based
discrimination and this decision 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 20, 2009
__________________
Date
2
0320090074
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090074