03A50003
12-09-2004
Ed Andresen, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ed Andresen v. United States Postal Service
03A50003
December 9, 2004
.
Ed Andresen,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A50003
MSPB No. SF-0752-04-0407-I-1
DECISION
On October 20, 2004, 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner, a Postmaster at the agency's Oakland, California, P & D
facility, alleged that he was discriminated against on the bases of race
(Pacific Islander), national origin (Pacific Islander), disability<1>
(permanent neck injury and stress), age (D.O.B. October 9, 1951), and
reprisal when he was removed from his position as Postmaster.
On April 21, 2004, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge found that agency officials
articulated a legitimate, nondiscriminatory reason for the action and
that petitioner was removed for his continued absence from the workplace
on Leave Without Pay (LWOP) status for almost three years, and because
of medical documentation that reported that he would be unable to return
to work. The Administrative Judge further found that petitioner failed
to establish, by a preponderance of the evidence, that the agency's
action was a pretext for discrimination. The Board denied petitioner's
petition for review.
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
December 9, 2004
__________________
Date
1For purposes of analysis only, we assume that petitioner is covered by
the Rehabilitation Act.