0320090006
01-22-2009
Oscar M. Gonzalez, Petitioner, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Oscar M. Gonzalez,
Petitioner,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Petition No. 0320090006
MSPB No. SF0432070397
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a decision issued by the Merit Systems
Protection Board (MSPB) concerning his claim of discrimination alleging
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
In his appeal before the MSPB, petitioner alleged that he was
discriminated against on the bases of sex (male) and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964,
when he was removed from his position of Safety Inspector, GS-2123-11,
effective February 18, 2007. A hearing was held on his claim, and
thereafter a MSPB Administrative Judge (AJ) issued an initial decision
upholding the removal and finding no discrimination or reprisal.
The AJ found that petitioner was removed on the grounds of poor
work performance following his placement on a performance improvement
plan. Specifically, petitioner was charged with unacceptable performance
in conducting compliance reviews and new entrant audits (14 instances),
enforcement actions (2 instances), and providing technical assistance
and outreach (3 instances). The AJ focused on the compliance reviews
and found that the evidence of record supported the agency's claim that
petitioner's performance was inadequate, that he did not demonstrate
an understanding of the regulations, and that he did not demonstrate
the proper use of the software in his computer during the performance
improvement plan. The AJ noted that petitioner did not dispute the
agency's findings of unacceptable performance in conducting compliance
reviews either at the hearing or in submissions to the Board. The AJ
went on to address petitioner's concerns regarding his work week,
dummy inspections, withholding documentation, computer problems and
insufficient lighting, safety audits, training, and bias by management.
The AJ found that testimony provided for the agency was straight-forward
and consistent and that the agency proved its case for removing petitioner
for unacceptable performance. The AJ also found that petitioner did
not show that the agency's reasons for its actions were a pretext for
discrimination or reprisal.
Petitioner requested review by the full Board. In an Opinion and Order,
the Board affirmed the findings of the initial decision regarding no
discrimination and reprisal, but remanded the matter to the AJ to address
petitioner's whistleblower claims. Thereafter, the AJ issued another
decision addressing only the whistleblower claims and again upholding
the removal. 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 (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 22, 2009
__________________
Date
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0320090006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090006