0320090048
04-29-2009
Algernon W. Tinsley, Petitioner, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Algernon W. Tinsley,
Petitioner,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Petition No. 0320090048
MSPB No. CB7521080010T1
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. 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) and age (approximately 70) when he was suspended
for 30 days. Briefly, petitioner was an Administrative Law Judge with
the agency's Office of Disability Adjudication and Review in Huntingdon,
West Virginia. He was suspended for making false entries on agency time
and attendance rosters (SSA-30).
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that the agency supported its position
and upholding the suspension. The Commission notes that petitioner did
not testify at the hearing and refused to be deposed, citing his Fifth
Amendment rights. Thus, the AJ relied on the record and witnesses called
by the agency whom he found credible. Although petitioner alleged that
a younger, white employee was treated differently than he, the AJ noted
that at the time there were problems with the other employee's time and
attendance, the regional chief judge did not have the authority to issue
discipline. Investigations and reports were done for both petitioner
and the employee, but the chief administrative judge could not impose
discipline, although he testified he would have disciplined the other
employee if he had the authority. Petitioner sought review by the
full Board which denied his petition. Petitioner then filed the instant
petition with the Commission. Petitioner did not make any arguments in
his petition.
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 (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
April 29, 2009
__________________
Date
2
0320090048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090048