03a60098
08-02-2006
Otis W. Grigsby, Sr., Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Otis W. Grigsby, Sr.,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A60098
MSPB No. DA0752050430I1
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 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Petitioner filed a mixed case complaint with the agency alleging that
he was discriminated against on the bases of race (African-American),
sex (male), religion (Christian), color (Black), disability (foot), age
(D.O.B. 01/01/57), 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 Supervisor of Distribution Operations for unacceptable work
performance and failure to follow the duties of his position. Following
an investigation, the agency issued a decision finding that petitioner
was not discriminated against as alleged. Thereafter petitioner filed an
appeal with the MSPB. Petitioner did not request a hearing before the
MSPB, and the appeal was decided based on the investigation conducted
on his complaint and the written submissions of the parties. The MSPB
AJ issued a decision finding that petitioner failed to perform in an
acceptable manner and that there was no discrimination or reprisal.1
Petitioner sought review by the full Board which denied his request.
Petitioner then filed the instant petition with the Commission submitting
information about a prior EEO complaint which had been adjudicated in
his favor.
Briefly, the evidence of record indicated that petitioner received a
notice of proposed removal stemming from an incident which occurred on
October 18, 2003. On that date, agency management noticed several carts
of delayed mail, and petitioner was instructed that he was expected to
have all the mail ready for dispatch. Petitioner apparently provided
management with assurances that that he would complete the task, and
was provided with an additional employee to assist in working the mail.
However, when it was time for dispatch, the mail was not ready. When
questioned about the reason for not having the mail ready, management
witnesses averred that petitioner became "belligerent," spoke in a raised
voice, flailed his arms, and slammed a door opened. He was ordered to
leave the building or be escorted out by the police, which he eventually
did while continuing to yell at the supervisors. Management witnesses
stated they proposed complainant's removal because, under the agency's
progressive discipline policy, he had a prior disciplinary record,
including three letters of warning in the six months prior to his removal.
The prior discipline was also issued, at least in part, for a refusal
to recognize the authority of his supervisors and failure to properly
prioritize the mail.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case complaints 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
August 2, 2006
__________________
Date
1 The Commission assumes for purposes of this decision that petitioner
is a person with a disability. 29 C.F.R. � 1630.2(g).
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03A60098
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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03A60098