Willie L. Poke, Petitioner,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 20, 2006
0320070004 (E.E.O.C. Nov. 20, 2006)

0320070004

11-20-2006

Willie L. Poke, Petitioner, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Willie L. Poke,

Petitioner,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Petition No. 0320070004

MSPB No. CH0752060114I1

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.

Petitioner alleged that he was discriminated against on the basis

of race (African-American) when he was removed from his position of

Social Services Assistant, GS-6, on the charges of sexual misconduct and

providing a false statement in connection with an official investigation.

Briefly, petitioner was charged with having sex with a sixteen year old

Jobs Corps student against her will, and with denying that he visited

another Job Corps student at her residence.

A hearing was held and thereafter an MSPB Administrative Judge (AJ)

issued an initial decision finding petitioner was not discriminated

against as alleged. The AJ found the testimony and statements of the two

students to be credible in upholding the charges against petitioner.

Further, the AJ found that petitioner did not show he was treated

more harshly than similarly situated white employees. As such, he did

not show that the agency's reasons for its action were a pretext for

discrimination. Petitioner sought review by the full Board, which denied

his petition. He then filed the instant petition with the Commission.

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 (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

November 20, 2006

__________________

Date

2

0320070004

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

2

0320070004