0320080107
09-26-2008
Edward A. Patacsil, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Edward A. Patacsil,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320080107
MSPB No. SF0752070309I1
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.
Petitioner alleged that he was discriminated against on the bases
of race (Asian), national origin (Filipino), disability (feet, back,
anxiety, depression), and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964, when he was removed from his
position of Heavy Mobile Equipment Mechanic, effective January 15, 2005,
for physical inability to perform the duties of his position.
Petitioner filed a mixed case complaint and the agency issued a decision
finding that petitioner was not discriminated against as alleged.
Thereafter, petitioner filed an appeal with the MSPB. Following a
hearing, the MSPB Administrative Judge (AJ) issued a decision upholding
the removal and finding that petitioner was not discriminated against
as alleged.
The record establishes that petitioner received a notice of proposed
removal on November 30, 2004, for "physical inability to perform the
duties of [his] position." The notice indicated that petitioner had not
been able to perform these duties since March 2002, and the physical
restrictions which prevented him from performing the duties were
"permanent" according to his physician. The proposal also noted that
no positions were available to which petitioner could be reassigned
that were within the medical restrictions specified by his physician.
In light of these facts, petitioner's removal was being proposed in order
to fill his position due the "work load in the squadron." The proposal
was later sustained by upper-level management and petitioner was removed
effective January 15, 2005.
The MSPB AJ noted that there was a stipulation at the hearing that
petitioner could not perform the duties of his position, with or without
reasonable accommodation.1 The AJ further noted that, even assuming
petitioner was a person with a disability, there were no vacant positions
for which he qualified and to which he could have been reassigned. The
AJ also found that petitioner did not prove his claims of discrimination
on the other bases alleged. Petitioner sought review by the full Board
but his petition was denied. Petitioner then filed the instant petition.
EEOC regulations provide that the Commission has jurisdiction over
mixed case complaints 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).
The Commission notes that, even assuming petitioner was a person with
a disability, the record clearly establishes that complainant could
not perform the essential functions of his position, with or without
reasonable accommodation. The agency's duty, when faced with such a
situation, is to reassign him to a vacant funded position for which
he qualified. However, such a position was not available. Further,
with respect to his other claims of discrimination based on race,
national origin and reprisal, petitioner did not show that the reasons
for removing him were a pretext for discrimination or reprisal.
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 (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
September 26, 2008
__________________
Date
1 The record indicates that petitioner was granted a disability
retirement after his removal by the agency.
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0320080107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080107