0320090063
06-30-2009
Quenista A. Glover, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Quenista A. Glover,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320090063
MSPB No. DA0432080191I1
DECISION
On November 12, 2008, petitioner filed a 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.
At the time the events at issue arose, petitioner was employed by
the agency as a GS-5 Engine Records Clerk at Tinker Air Force Base in
Oklahoma. Effective January 7, 2008, the agency removed petitioner from
her position on the charge of unacceptable work performance. Petitioner
appealed her removal to the MSPB. In her appeal, petitioner alleged,
among other things, that she was discriminated against on the bases of
race (African American) and reprisal when she was removed. Following a
hearing, a MSPB Administrative Judge issued a decision upholding the
removal and finding that petitioner was not discriminated against as
alleged. Petitioner appealed the initial decision to the full Board,
which denied the petition. The instant petition for review followed.
As an initial matter, we need to address an issue concerning the
timeliness of the petition for review. We note that the full Board's
final decision contains a certificate of service indicating it was mailed
to petitioner by regular first class mail on September 8, 2008. The
decision was also sent to petitioner's designated union representative by
certified mail, and the record contains a certified mail return receipt
indicating the decision was received by him on September 11, 2008.
A review of the Board's decision reveals that the MSPB properly advised
petitioner that she had thirty (30) calendar days to file a petition for
review with the Commission. However, petitioner's petition for review
to this Commission was postmarked November 12, 2009, more than 30 days
from when her representative received the Board's decision.
Petitioner acknowledges that her petition appears to be untimely filed,
but states that she did not receive her copy of the MSPB decision by
mail, and did not know about it until her husband went to the union
office on October 20, 2008, and got a copy from her representative.
She states that she initially believed that she could not file an appeal
because of the timing. However, she saw an attorney on November 7, 2008,
who told her to file an appeal because the matter was the union's fault.
She filed the instant petition on November 12, 2008.
The Commission finds that the petition was filed beyond the 30-day
limitation period from when the record establishes petitioner's
representative received the MSPB final decision. However, EEOC
regulations provide that time frames for receipt of materials are only
computed from date of receipt by a designated representative if that
representative is an attorney. 29 C.F.R. � 1614.604(d). The record
indicates that petitioner's representative was a union official and
not an attorney. Therefore, the 30-day limitation period counts from
when petitioner herself received the MSPB decision. Under the facts
of this case, and in light of petitioner's sworn statement that she did
not receive the MSPB decision until October 20, 2008, we will deem the
petition timely filed.
As already noted, following a full hearing, the MSPB AJ upheld the
removal and found no race or reprisal discrimination. The full Board
denied petitioner's petition for review. In sustaining the removal,
the MSPB AJ found that the evidence established that in June 2007,
petitioner's supervisor provided her with a progress review in which
she notified her of performance deficiencies. In August 2007, the
supervisor placed petitioner on a 60-day Performance Improvement Plan
(PIP) because she determined petitioner was still not meeting her
performance standards. The AJ found that during the PIP period, both
the supervisor and two co-workers provided petitioner with training and
assistance in an effort to improve her work performance. On October 27,
2008, the supervisor proposed petitioner's removal, detailing instances
of performance deficiencies, mainly concerning problems she had prepping
and scanning documents properly which resulted in untimely and inaccurate
filing of data.
With regard to petitioner's discrimination claims, the MSPB AJ
found complainant failed to ultimately prove, by a preponderance
of the evidence, that she was removed because of her race. The AJ
considered petitioner's testimony that she believed two other Caucasian
Engine Record Clerks also made mistakes, but were retrained and moved.
However, the AJ concluded that complainant did not prove that these two
clerks made the same, or as many errors, over the same period of time
as petitioner did. With regard to her reprisal claim, the AJ found that
the management officials responsible for petitioner's removal were aware
that she had filed two EEO complaints and reached a settlement agreement
for both in 2007. However, the AJ concluded that petitioner did not
establish an adequate nexus between this prior protected activity and
the removal decision. Rather, the AJ found that the management officials
credibly testified that it was petitioner's failure to meet her critical
performance standards that was the sole reason for the removal decision.
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).
On petition, petitioner makes no argument on the merits of her claims
of discrimination. 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. We note, in particular, that the MSPB
AJ made specific credibility findings concerning the testimony of the
responsible management officials and we give deference to these findings.
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
June 30, 2009
__________________
Date
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0320090063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090063