Robert L. Sinclair, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency. Petition No. 0320110033 MSPB No. CH-0752-10-0766-I-2 DECISION On May 4, 2011, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision 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. ISSUE PRESENTED The issue presented is whether the MSPB’s final decision with respect to Petitioner’s allegation of race and reprisal 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. BACKGROUND In an appeal filed with the MSPB, Petitioner alleged that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII when, effective June 26, 2010, he was removed from his position of Automation Mail Processing Clerk at the Agency’s Louisville, Kentucky Processing and Distribution Center. Petitioner’s removal was based on two charges: (1) Unsatisfactory Work Performance; and (2) Improper Conduct. On March 29, 2011, following a hearing, an MSPB Administrative Judge (MSPBAJ) issued an initial decision upholding the Agency’s action and finding no discrimination. Regarding the first charge, the MSPBAJ found that the Agency proved that Petitioner engaged in unsatisfactory work performance on April 6, 2010 when he skipped three trays of mail while feeding mail into his Delivery Bar Code Sorter (DBCS) machine. The MSPBAJ noted the following conflicting testimony: (a) Petitioner specifically denied skipping any trays of mail on April 6, 2010; and (b) Petitioner’s First Level Supervisor (S1) testified that, after Maintenance was called to Petitioner’s machine on April 6, 2010, Electronics Technicians notified her that trays of mail had been skipped and she observed that the skipped trays had not been fed into the machine. The MSPBAJ, however, determined that S1’s testimony was more credible than Petitioner’s testimony for several reasons. Specifically, the MSPBAJ found that S1’s testimony was consistent with an email message from the Supervisor of Maintenance Operations (SMO) to the Maintenance Manager, in which SMO indicated that an Electronics Technician informed him that Petitioner “went from tray 192 to 196, skipping trays 193, 194 and 195 causing them to hold back the mail so that they could get the mail back in the right sequence with a restart.” In addition, the MSPBAJ found that S1’s testimony was consistent with a Mail History Tracker System report which indicated that 620 mail pieces were “back tracked” on Petitioner’s machine on April 6, 2010. Further, the MSPBAJ found that nothing about S1’s demeanor during the hearing suggested that the testimony she presented was anything other than an honest account of the facts as she remembered them. Finally, the MSPBAJ found that Petitioner appeared to testify in a manner in which he shifted blame away from himself, disparaged the testimony of other witnesses as “asinine,” and otherwise shaded his testimony to make himself appear in the most favorable light. Regarding the second charge, the MSPBAJ found that the Agency proved that Petitioner engaged in improper conduct on April 29, 2010 when he took mail from one tray and placed it in another tray on a co-worker’s (CW1) DBCS machine. The MSPBAJ noted the following conflicting testimony: (a) Petitioner denied committing the misconduct; and (b) CW1 testified that she saw Petitioner moving mail from one tray to another tray on her machine. The MSPBAJ, however, determined that CW1’s testimony was more credible than Petitioner’s testimony for several reasons. Specifically, the MSPBAJ found that CW1 did not have any reason to present biased testimony against Petitioner and that her testimony was consistent with a written statement she provided on April 29, 2010. In addition, the MSPBAJ found that CW1’s testimony was consistent with the testimony provided by S1 and the Acting Manager of Distribution Operations regarding the out-of-sequence errors they discovered when they reran several of the trays of mail that Petitioner allegedly tampered with. Further, the MSPBAJ found not credible the testimony of Petitioner’s co-worker (CW2) that she was working on the same machine with Petitioner that night and did not see Petitioner go to CW1’s machine. The MSPBAJ found that CW2’s testimony was inconsistent about when certain events occurred that night and that CW2 was not always in a position to observe if Petitioner had been at the trays on CW1’s machine. Finally, the MSPBAJ found that nothing about CW1’s demeanor during the hearing suggested that the testimony she presented was anything other than an honest account of the facts as she remembered them and, as previously discussed, his observation of Petitioner’s demeanor during the hearing suggested that Petitioner was testifying in other than a completely forthright manner. Regarding the issue of race discrimination, the MSPBAJ found that Petitioner failed to prove that the Agency removed him because of his race. Specifically, the MSPBAJ found that Petitioner failed to present evidence that similarly situated employees of a different race were treated less harshly than he was. Although Petitioner’s attorney wrote and submitted a response to an affirmative defenses order in which he claimed that Caucasian employees performing the same job as Petitioner committed “the same infraction” without being discipline, the MSPBAJ found that the response did not constitute evidence because it was a statement of a party’s representative in a pleading. As to Petitioner’s testimony that a Caucasian employee (CW3) with whom he was working on April 6, 2010 was not punished for the skipped trays of mail, the MSPBAJ found that there was no evidence that CW3 played any part in Petitioner’s failure to run the trays in the proper sequence on that night. In addition, the MSPBAJ found that Petitioner failed to present evidence that would, if not rebutted, give rise to an inference that the Agency’s action was motivated by race discrimination. Regarding the issue of reprisal discrimination, the MSPBAJ found that Petitioner failed to prove that the Agency removed him because of his prior EEO activity. Specifically, the MSPBAJ found that the charged misconduct was serious misconduct and, while he established that the Agency officials involved in his removal were aware of his prior EEO activity, Petitioner failed to produce any evidence that those officials had a strong motive to retaliate against him for such activity. Petitioner did not file a petition for review by the full Board and the MSPBAJ’s initial decision became the MSPB’s final decision on May 3, 2011. Petitioner then filed the instant petition. Petitioner, through his attorney, “appeal[ed] the discrimination issues in the decision of the [MSPB].” Petitioner, however, did not provide a statement indicating any specific reasons why he felt that the final decision of the MSPB was incorrect with regard to the issues of race and reprisal discrimination. ANALYSIS AND FINDINGS 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). Upon review of the record, we concur with the MSPB’s decision that Petitioner did not establish that the Agency’s reasons for his removal were a pretext for race and reprisal discrimination. Initially, we observe that Petitioner did not specifically challenge any part of the MSPB’s decision in his petition to the Commission. In addition, we give deference to the MSPBAJ’s credibility findings regarding the testimony of S1, CW1, and Petitioner.1 Further, we note that Petitioner’s removal was based on two charges and Petitioner did not identify any non-African-American employee who had similar performance and misconduct issues, but was treated differently than he was treated. Finally, we note that Petitioner did not provide any evidence that the Agency officials involved in his removal were motivated by retaliatory animus. Accordingly, we conclude that the MSPB correctly held that Petitioner failed to show that his removal constituted unlawful race and reprisal discrimination. CONCLUSION 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 (W0610) 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 (Z0610) 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 ______7/20/11____________ Date 1 An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Ch. 9, at § VI.B. (Nov. 9, 1999). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0320110033 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0320110033