0320100003
12-03-2009
Michael J. Lutz, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Michael J. Lutz,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Petition No. 0320100003
MSPB No. CH075030220I2
DECISION
On August 6, 2009, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC or Commission) asking for
review of a Final Order issued by the Merit Systems Protection Board
(MSPB or Board) 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 based on reprisal for
prior EEO activity when he was demoted from the position of postmaster of
the Pleasant Lake Post Office in Pleasant Lake, Michigan to mail handler,
effective December 14, 2002. Petitioner's superior, the acting manager
of post office operations (POOM), proposed removing petitioner, and
the lead executive/district manager customer services and sales decided
instead to demote him.
Petitioner was demoted under charges of (1) failure to discharge his
duties as a postmaster by (a) not issuing letters of demand or collecting
shortages and (b) not following procedures of using stamp requisition PS
Form 17 when relinquishing stamp stock from the main stock over to the
employee assigned to window duties; (2) nepotism; and (3) improper use
of employees and improper recording of work hours. Following a hearing,
an MSPB Administrative Judge (AJ) made an initial decision upholding
the charges and finding no reprisal discrimination. The Board denied
petitioner's petition for review of the initial decision.
The MSPB AJ found that while petitioner contended the POOM went after
him, and he proposed discipline for petitioner's failure to carry out
his responsibilities, the POOM's concerns were legitimate. The AJ
found petitioner's contention that the POOM told him he never lost an
EEO and was going to get even with him [for a prior EEO claim which was
allegedly settled in petitioner's favor], and that one of these days he
was going to get him was not credible.
In his petition to the Commission, petitioner argues that his prior EEO
activity and reminding the deciding official of it was the reason for
his demotion. Petitioner also disagrees with the AJ's above specified
credibility finding. Petitioner argues that the MSPB AJ failed to
address his disability discrimination claim.
In opposition to petitioner's petition, the agency, citing Wynne
v. Department of the Air Force, EEOC Petition No. 0320090063 (June
30, 2009), argues that the Commission gives deference to specific
credibility findings of an MSPB AJ. It argues that petitioner's case
before the MSPB did not include disability discrimination, and refers
to petitioner's pre-hearing submission and petition for review with
the Board. Petitioner was represented by an attorney before the MSPB.
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).
We agree with the finding of the MSPB that petitioner failed to prove
that reprisal, and not the charges against him, were the reason for
his demotion. We give deference to the AJ's credibility finding that
the above statements attributed to the POOM were not made. We also agree
with the agency's argument that petitioner did not include disability
discrimination in his MSPB case. This is supported by petitioner's
amended pre-hearing report, the AJ's written summary of the telephonic
pre-hearing conference, and petitioner's argument in his petition for
review with the Board.
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
December 3, 2009
__________________
Date
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0320100003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320100003