0320090076
08-18-2009
Everette Jones, Petitioner, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Everette Jones,
Petitioner,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Petition No. 0320090076
MSPB No. DE0752080270I1
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.
Petitioner alleged that he was discriminated against on the bases of
race and reprisal when he was removed from his position of Meatcutting
Worker, WG-7407-05, effective February 28, 2008. Petitioner was removed
for being absent without leave (AWOL) for 18 months.
Petitioner requested a decision based on the written record, and
thereafter an MSPB Administrative Judge (AJ) issued an initial decision
sustaining the charge of AWOL1. The AJ found that petitioner was properly
place don AWOL in September 2006, and failed to provide administratively
acceptable medical documentation to justify his continued absence. With
respect to petitioner's discrimination claims, the AJ noted that
petitioner did not identify any comparative employees. Further, to the
extent petitioner raised reprisal claims, the AJ found that the agency's
reason for taking the removal action was because of the seriousness
of his AWOL. Petitioner filed a petition for review with the full Board
which denied the petition. Petitioner then filed the instant petition,
but made no arguments therein.
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. Petitioner has failed to show that the agency's
reasons for its actions were a pretext for discrimination or reprisal.
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
August 18, 2009
__________________
Date
1 Petitioner filed an earlier appeal with the MSPB involving a
constructive suspension. The AJ dismissed the matter for lack of
jurisdiction, finding that petitioner failed to provide medical
documentation to the agency as requested. The dismissal was ultimately
upheld by the United States Court of Appeals for the Federal Circuit,
No. 2008-3166 (July 10, 2008). The file on the previous appeal was
included with the instant petition.
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0320090076
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090076