John H. Nelson, Jr., Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Petition No. 0320070061 MSPB No. DA-0752-06-3055-I-1 DECISION BACKGROUND On March 30, 2007, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Petitioner alleged that he was discriminated against on the bases of race (African-American), sex (male), and age (D.O.B. 07/06/56) when, effective March 10, 2006, petitioner was removed from his position of Carrier Technician at the Greens North Postal Station in Houston, Texas, on the charge of improper conduct. A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding no discrimination. The MSPB AJ determined that petitioner failed to substantiate his claims of discrimination on the bases of race and/or sex. As to petitioner's claim of age-based discrimination, the MSPB AJ found that petitioner did not present any evidence whatsoever to show that age was a determinative factor in his removal action. As such, the MSPB AJ concluded that petitioner did not show that the removal action was based on his race, age or sex. Petitioner filed a petition for review with the Board. The Board denied the petition on February 27, 2007. This petition followed. ANALSYS 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). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For petitioner to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the petitioner bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether petitioner has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review of the record, we find that the agency provided legitimate, nondiscriminatory reasons for its action. Petitioner was removed for engaging in improper conduct. The record showed that petitioner requested sick leave on January 25 and 26, 2005; March 15 and 16, 2005; May 7, 2005; May 12, 2005, June 14 and 15, 2005; and September 10, 2005. The agency conducted an Office of Inspector General investigation (hereinafter "OIG investigation") and discovered that petitioner reported to work on all those dates at his other employer, Continental Airlines. In addition, during the OIG investigation, it discovered that petitioner failed to clock out at the end of his tour leaving petitioner in overtime status with the agency at the same time he reported to his second job at Continental Airlines. The OIG investigation discovered that this occurred on thirty-three occasions. The OIG investigation report was provided to the Manager of Customer Service (Manager). The Manager confirmed the information provided in the OIG investigation. As a result of the findings, petitioner was removed from his position. The Commission also finds that petitioner failed to show that the agency's reasons were pretext for discrimination based on his race, sex, and/or age. 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 (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 April 26, 2007 __________________ Date 2 0320070061 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 3 0320070061