Jessie\ O. Mack, Petitioner,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 4, 2009
0320090024 (E.E.O.C. Mar. 4, 2009)

0320090024

03-04-2009

Jessie\ O. Mack, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Jessie\ O. Mack,

Petitioner,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 0320090024

MSPB No. CH0752080363I1

DECISION

On January 7, 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 alleged that he was discriminated against on the basis of race

(African-American), when on January 18, 2008, he was removed from the

position of Housekeeping Aid (Leader) with the Department of Veterans

Affairs, Hines, Illinois.

The record reflects that the agency removed petitioner based on

the charge of improper conduct. The agency charged petitioner with

improper conduct specifically because of his repeated use of crude and

disrespectful remarks made toward female employees in the workplace.

Petitioner's conduct, the agency maintained, created an abusive, hostile

work environment for its female employees who worked in the Housekeeping

Department.

Further review of the record reveals that on August 9, 2006, the agency's

Chief of Environmental Management Service (Environmental Chief) was

presented with a signed petition from twelve employees informing him of

petitioner's misconduct. Moreover, there is record evidence showing

that lower-level supervisors were aware of the misconduct; in fact,

many of these supervisors and the Environmental Chief were ultimately

disciplined for their failure to take corrective action.

Following a hearing, the Administrative Judge (AJ) found that the

testimony of agency witnesses was more credible than that of petitioner.

Also, petitioner did not deny his inappropriate behavior indicated in

the record. With respect to petitioner's claims of race discrimination,

the AJ found that petitioner failed to show that agency officials

were motivated by discriminatory animus. The AJ noted that "all the

employees in the appellant's work unit that are involved in this case

are African-American." The AJ maintained that the record supports the

charges of misconduct brought by the agency. In effect, petitioner failed

to show a nexus between his race 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 he made arguments mainly asserting that the AJ applied

an erroneous standard of review while excluding relevant evidence which

would purportedly show petitioner's conduct to be socially acceptable

in the Black community.

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

0320090024

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0320090024