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