Raymond Moctezuma, Jr., Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 27, 2009
0320090013 (E.E.O.C. Jan. 27, 2009)

0320090013

01-27-2009

Raymond Moctezuma, Jr., Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Raymond Moctezuma, Jr.,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 0320090013

MSPB No. AT-0752-08-0452-I-1

DECISION

On November 6, 2008, petitioner filed a timely petition with the Equal

Employment Opportunity Commission (EEOC) 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 was a mail handler with the Miami Logistics and Distribution

Center in Miami, Florida. He claimed that he was discriminated against on

the bases of race (white), national origin (Hispanic), sex (male), color

(brown) and reprisal for prior protected EEO activity when he was removed

effective February 26, 2008, for unacceptable conduct. Petitioner was

charged as follows: he refused a supervisor's instruction to report

to Cell 00 for a task by stating in an aggressive and disrespectful

matter that he would not do so. After the supervisor returned with a

managerial witness and repeated the instruction, petitioner screamed and

yelled "what is your problem," and when the supervisor started to walk

away, petitioner said "come back here and talk like a man." When the

supervisor continued to walk away, petitioner repeatedly yelled "this

is your last warning." The supervisor felt threatened. Petitioner did

not go to Cell 00. The decision to remove referred to prior discipline,

i.e., a seven day suspension on March 7, 2007, for improper conduct; an

April 4, 2007, letter of warning for unsatisfactory performance; a July

12, 2007 fourteen day suspension for improper conduct; and a November 6,

2007, fourteen day suspension for failure to follow instructions.

Following a hearing an MSPB Administrative Judge (AJ) issued an initial

decision sustaining the charge, upholding the removal, and finding no

discrimination. Petitioner denied the charges. He denied refusing

to go to Cell 00 and speaking to the supervisor in an aggressive or

disrespectful manner. The AJ credited the supervisor's testimony

which supported the charge. In fact, the supervisor testified that he

instructed petitioner four or more times to go to Cell 00, to no avail.

In crediting the testimony, the AJ found it was corroborated by the

testimony of another mail handler who witnessed the exchanges, and

the manager the supervisor retrieved to witness the instruction to

petitioner.

The initial decision also found that the agency properly relied on

the prior discipline in removing petitioner. Further, petitioner has

not shown he was disparately treated. The Board denied petitioner's

petition for review. Thereafter, petitioner filed the instant petition.

By reference to his petition to the Board, petitioner appears to

argue that the agency should not have relied on the prior discipline.

While he made various arguments for why the agency should not have relied

on the prior discipline, he has not shown it did so for discriminatory

reasons.

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 27, 2009

__________________

Date

2

0320090013

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0320090013