0320090009
01-15-2009
Stephen R. Erkins, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen R. Erkins,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090009
MSPB No. CH-0752-07-0449-I-1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of an October 3, 2008 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.
During the relevant period, petitioner was employed as a Mail-handler
at a Cincinnati, Ohio facility of the agency. In a Notice of Proposed
Removal dated March 29, 2007, the agency alleged that petitioner acted
improperly when, on eight occasions between September 13, 2006 and
January 8, 2007, he requested sick leave to attend court proceedings
for which he was a party. The proposal followed an investigative report
regarding falsification of sick leave requests from the agency's Office
of Inspector General (OIG). Effective May 4, 2007, the agency affirmed
the proposed removal. In a mixed case appeal received by the MSPB on
May 17, 2007, petitioner alleged that the agency discriminated against
him on the basis of reprisal for prior protected EEO activity when it
removed him from Federal employment citing "improper conduct."1
On July 17, 2007, an MSPB Administrative Judge (AJ) held a hearing
on petitioner's mixed case appeal. During the hearing, petitioner
acknowledged that he attended court proceedings during the times for
which he requested sick leave, and stated that he has an on-the-job back
injury that was exacerbated by the stress of his court proceedings.
Further, petitioner stated that his supervisor never asked the reason
he needed to request sick leave, although she stated otherwise during
the appeal process. Subsequently, the AJ issued an Initial Decision
affirming the agency's charge of improper conduct and penalty of removal.
Petitioner then sought review of the Initial Decision by the full Board,
which the Board granted. The Board sustained the improper conduct charge
and vacated the removal penalty. It remanded the matter for adjudication
of petitioner's affirmative defense of retaliation and discrimination.
The Board noted that the AJ did not address petitioner's affirmative
defense in his Initial Decision and ordered the AJ to issue a new decision
addressing it.
The AJ conducted a second hearing, during which petitioner stated that the
agency applied the maximum penalty unnecessarily and improperly considered
his degree of remorse as a factor in determining its penalty. Further,
petitioner stated that the agency retaliated against him by placing his
sick leave information in a place it would be discovered by OIG. In a
second Initial Decision, the AJ affirmed petitioner's removal, finding
no nexus between the agency's action and petitioner's prior EEO activity,
race, or sex. Further, the AJ noted that he does not claim jurisdiction
over the OIG investigation, but concluded that petitioner failed to prove
his affirmative defense for that matter as well. Petitioner filed a
second petition for review with the full Board. In a Final Order dated
October 3, 2008, the Board denied petitioner's request. The instant
petition to this Commission followed.
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 15, 2009
__________________
Date
1 We note that the mixed case appeal contains the basis of reprisal only.
During the hearing stage, petitioner asserted race (African-American)
and sex (male) discrimination as an affirmative defense, but later waived
the additional bases.
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0320090009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 200136
3
0320090009