0320090077
08-21-2009
Winfred H. Daniels, Petitioner, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Winfred H. Daniels,
Petitioner,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320090077
MSPB No. DA0752090120I1
DECISION
On July 16, 2009, 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 bases of race
(African American) and reprisal for prior protected EEO activity under
Title VII when he was removed from the agency, effective October 30,
2008.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued
an initial decision finding no discrimination. Petitioner sought review
by the full Board, but in a decision dated June 5, 2009 the Board denied
his request. Petitioner then filed the instant petition but presents
no new argument on appeal.
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).
The AJ found that the agency articulated a legitimate, nondiscriminatory
reason for its action. Specifically, the termination notice noted that
petitioner was removed for "deliberate misrepresentation of material in
connection with an official document in an attempt to fraudulently obtain
workers [sic] compensation benefits." The record shows that petitioner
submitted a letter from his doctor to the Office of Workers' Compensation
Programs in which petitioner altered the letter to remove the word
"not" so that the letter appeared to indicate that petitioner's doctor
was stating his belief that petitioner's condition was work-related.
Petitioner does not deny altering the letter, but maintains that
the agency's decision to remove him is discriminatory and/or based
on reprisal. As the AJ noted, however, petitioner has not shown that
other coworkers who were similarly situated were treated less harshly.
Nor has petitioner otherwise met his burden of establishing that the
agency's articulated reason for its action is a pretext for discrimination
or reprisal.
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
August 21, 2009
__________________
Date
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0320090077
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090077