Frank Black v. United States Postal Service 03A60034 February 14, 2006 . Frank Black, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Petition No. 03A60034 MSPB No. AT-0752-05-0207-I-1 DECISION On December 7, 2005, 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, a supervisor of Customer Services with the agency's Myrtle Beach, South Carolina postal facility, alleged that he was discriminated against on the basis of race (African-American), when on April 7, 2004, he was issued a notice by his supervisor proposing his removal for unacceptable conduct, specifically, falsifying employee clock rings and failure to cooperate during a postal investigation. The record reflects that petitioner had routinely allowed two employees to leave early on Saturdays, and subsequently would enter clock rings indicating that they had worked a full eight hours. The record also reflects that this practice went on for approximately a year before an internal investigation was conducted, and these employees were paid over $4000.00 in salary for hours they did not actually work. Petitioner admitted to falsifying employee clock rings, and there were witness statements regarding the account. Concerning the investigation, the record reveals that after approximately a half-hour of protestations and avoidance, petitioner agreed to meet with investigators and respond to their inquiries. Thereafter petitioner received a notice of removal, and petitioner filed an appeal with the MSPB. Following a hearing, the Administrative Judge (AJ) found that the testimony of the witnesses involved, including agency officials, was more credible than that of petitioner. Specifically, the AJ found that by petitioner's own admission, he falsified time records. With respect to petitioner's race claim, the AJ found that petitioner did not establish a prima facie case, but assuming arguendo that he had, petitioner failed to show that agency officials were motivated by discriminatory animus. In effect, petitioner failed to show a nexus between his race and the agency's actions or that the actions were a pretext for unlawful discrimination. Petitioner sought review by the full Board, but the Board denied petitioner's petition for review. Thereafter petitioner filed the instant petition with the Commission, where he made arguments mainly asserting that other similarly situated supervisors had engaged in similar conduct without discipline, however, petitioner fails to proffer evidence which shows that these supervisors had made entries for time employees did not work. 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 and for the foregoing reasons, 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 February 14, 2006 __________________ Date