Marla W. Hunter, Petitioner,v.Michael B. Mukasey, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJan 15, 2009
0320090019 (E.E.O.C. Jan. 15, 2009)

0320090019

01-15-2009

Marla W. Hunter, Petitioner, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.


Marla W. Hunter,

Petitioner,

v.

Michael B. Mukasey,

Attorney General,

Department of Justice,

Agency.

Petition No. 0320090019

MSPB No. CB7121080012V1

DECISION

Petitioner filed a timely petition with the Equal Employment Opportunity

Commission asking for review of a Opinion and 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 reprisal for prior protected EEO activity under Title VII of the

Civil Rights Act of 1964 when she was removed from her position of

WS-8 Maintenance Worker Supervisor with the Federal Bureau of Prisons,

Federal Correctional Institution, Fort Dix, New Jersey. Petitioner

was removed on the charges of: giving the appearance of having an

inappropriate relationship with an inmate; giving the appearance of

having an inappropriate relationship with an inmate's family member;

failure to report contacts with an inmate; failure to report contacts

with former inmate(s) and/or family members; unauthorized dissemination

of information; and for the release of information which could breach

the security of the institution. Briefly, the MSPB indicated that

the record established that petitioner corresponded with an inmate in

another facility, passing messages to him through a family member. The

inmate was, at one time, under petitioner's supervision on a work crew.

Petitioner did not report the contacts and relationships to management

as required by agency policy and she released non-public information

regarding the inmate to the inmate's family. Agency management also

asserted that, while corresponding with the inmate, petitioner discussed

several events that had occurred at her facility that could have been

used by inmates to breach security.

Petitioner grieved her removal and the matter went to arbitration. After

a hearing, the Arbitrator found sufficient evidence to sustain all

the charges against petitioner, and upheld the removal decision. The

Arbitrator further found that petitioner did not prove her claim of

reprisal. In effect, the Arbitrator found that petitioner did not show

that the agency's reasons for removing her were a pretext for reprisal.

Petitioner appealed the Arbitrator's decision to the MSPB. In its Opinion

and Order, the Board found that petitioner failed to show that the

Arbitrator erred as a matter of law regarding the charges against her,

in determining the penalty, and with respect to her reprisal claims.

The Board sustained the Arbitrator's decision in full.

EEOC regulations provide that the Commission has jurisdiction over 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

January 15, 2009

__________________

Date

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0320090019

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0320090019