0320080093
08-26-2008
David C. Stoddard, Petitioner, v. Pete Geren, Secretary, Department of the Army, Agency.
David C. Stoddard,
Petitioner,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Petition No. 0320080093
MSPB No. DA-0752-07-0550-I-1
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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In an appeal to the MSPB, petitioner alleged that he was discriminated
against on the bases of race (Caucasian), disability (back), age (53),
and reprisal for prior protected EEO activity, when he was removed
from his position as Pneudraulic Systems Mechanic. Briefly, on June 22,
2007, agency management proposed petitioner's removal on the charges of
creating a disturbance by implying he would inflict bodily harm on his
supervisor and coworkers, and for being absent without leave (AWOL).
With regard to the first charge, the proposal stated that on April
17, 2007, the day after the shooting deaths of 33 students and staff
members at Virginia Tech, petitioner pointed at two co-workers and
said one would be "number 34" and the other "number 35" and after he
was done with them, he would go upstairs and "take out" his supervisor
and other named employees. As a result of this statement, the proposal
asserted that the employees involved expressed fear of coming to work
and had to be granted leave. With regard to the second charge, the
proposal detailed six dates in March and April 2007 when petitioner was
allegedly AWOL. Following petitioner's opportunity to respond to the
charges, the proposal was upheld, and petitioner was removed effective
August 24, 2007. He appealed the removal to the MSPB.
A hearing was held, and thereafter a MSPB Administrative Judge (AJ) issued
an initial decision upholding the removal finding no discrimination or
reprisal. The AJ also found that the agency had provided petitioner with
an earlier reasonable accommodation for his back condition (herniated
disk) when it transferred him to work in another area. The AJ upheld both
charges, and found petitioner failed to show that the agency's reasons for
its actions were a pretext for discrimination. Petitioner sought review
by the full Board. The full Board upheld the removal, although it did
not sustain the AWOL charge. Petitioner then filed the instant 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 notes that, even assuming that petitioner
is disabled, the Commission's Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities at Question 30
specifically indicates that an employer may discipline an individual
with a disability for violating work place conduct standards even if
the misconduct results from a disability. In this case, there is not
even evidence connecting petitioner's asserted disability to the events
which led to the decision to remove him. 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 (Z0408)
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
August 26, 2008
__________________
Date
2
0320080093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080093