0320070039
02-02-2007
Linda P. Danner, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Linda P. Danner,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320070039
MSPB No. SF0752050566I2
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 her 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 she was discriminated against on the basis of sex
(female) when she was removed from her position of Club Manager, GS-12,
on a charge of "continuously falsifying government documents." Briefly,
petitioner was charged with directing the time keeper to give the Head
Chef night differential and overtime, in addition to regular hours,
each pay period between the years 2000-2005, regardless of the hours he
worked. An investigation by the agency found discrepancies between the
times the Chef clocked in and the hours recorded and paid.1 A hearing
was held and thereafter an MSPB Administrative Judge (AJ) issued an
initial decision finding that there was no discrimination. The AJ
noted that petitioner was not similarly situated to the male to whom
she compared herself because she supervised him, and that she failed
to show that the agency's reasons for her removal were a pretext
for discrimination.2 The Commission notes that the AJ did not find
petitioner credible. Petitioner sought review by the Full Board which
denied her request. 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).
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 (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 2, 2007
__________________
Date
1 The Chef is now deceased.
2 Both the comparative employee (an assistant manager) and the time
keeper were under petitioner's supervision. The male employee (who was
not disciplined) also signed off on numerous time and attendance records
for the Chef, but he attempted to raise the issue with others. He also
testified that he attempted to raise the matter with petitioner, to no
avail.
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0320070039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070039