0320080084
08-27-2008
George Bruton, Petitioner, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
George Bruton,
Petitioner,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080084
MSPB No. CH0752060580I1
DENIAL OF CONSIDERATION
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 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 basis of disability (knee) when he was removed from his
position of Housekeeping Aid, effective May 12, 2006, on the charge
of being absent without official leave (AWOL). Briefly, the record
establishes that petitioner sustained a work-related injury to his knee
in April 2002, and received workers' compensation benefits as a result,
including light duty assignments on a schedule limited to four hours per
day. In 2005, the Department of Labor's Office of Workers' Compensation
Programs (OWCP) determined, following a series of medical evaluations,
that petitioner's condition had improved and he was able to work a
full-time schedule. The agency offered petitioner a full-time light
duty position consistent with his medical restrictions that had been
approved by OWCP. Petitioner declined the position and OWCP terminated
his benefits. The agency then ordered petitioner back to work. Petitioner
returned to work, but did not work full days, so the agency charged him
AWOL for the hours he did not work. Thereafter, the agency removed him
from his position and petitioner appealed his removal to the MSPB.
A hearing was held and a MSPB Administrative Judge (AJ) issued an
initial decision upholding the removal. Petitioner sought review
by the full Board, wherein he argued that he had appealed the OWCP
termination of his workers' compensation benefits, and the Employees'
Compensation Appeals Board reversed the earlier finding and reinstated
petitioner's benefits. The Board found that in light of this award,
the AWOL charge could not be sustained. Thus, the Board ordered that
the removal be cancelled and petitioner be reinstated with back pay,
interest, and other relief. Petitioner then filed the instant petition.
EEOC Regulation 29 C.F.R. � 1614.305(a) states that once a petition
is filed, the Commission will examine it and determine whether the
Commission will consider the decision of the MSPB. After reviewing the
instant petition and the full record, the Commission declines to consider
the July 3, 2008 decision of the MSPB. Accordingly, the petitioner's
petition for review is denied. A determination of the Commission not to
consider the decision shall not be used as evidence with respect to any
issue of discrimination in any judicial proceeding concerning that issue.
29 C.F.R. � 1614.305(b).
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:
August
27,
2008
_______________________________
_____________________________
Carlton M. Hadden, Director Date
Office of Federal Operations
2
0320080084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036