03a40058
04-07-2004
Gary A. Fitz, Petitioner, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Gary J. Fitz v. Dept. of Transportation
03A40058
April 7, 2004
.
Gary A. Fitz,
Petitioner,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Petition No. 03A40058
MSPB No. BN-0432-03-0077-I-1
DECISION
On February 9, 2004 the petitioner filed a timely petition with the
Equal Employment Opportunity Commission asking for review of the decision
issued by the Merit Systems Protection Board (MSPB) dated December 30,
2003, concerning his claim of discrimination based on reprisal and
disability (diabetes and bipolar disorder) in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
The petitioner claims he was discriminated against when he was removed
from his position for poor performance. A hearing was held on the matter
and thereafter the MSPB AJ issued an Initial Decision upholding the
removal and finding that petitioner failed to show he was discriminated
against or that there was reprisal. Petitioner did not seek review by
the full Board, and the Initial Decision became the final decision.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on claims of discrimination. 29 C.F.R. � 1614.303 et seq.
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<1> because its ultimate finding of no discrimination 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 7, 2004
__________________
Date
1For purposes of this decision, we assume petitioner is a person with
a disability.