0320130030
09-19-2013
Hector J. Alicea, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Hector J. Alicea,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Petition No. 0320130030
MSPB No. AT0752120359I1
DECISION
On June 21, 2013, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (the Commission) for review of the Final Order of the Merit Systems Protection Board (MSPB or Board) issued May 30, 2013, concerning his claim that the Agency discriminated against him on the basis of National Origin (Hispanic)1 when, on February 24, 2012, he was removed from his position as a full-time Sales, Services and Distribution Associate, PS-06 with the Agency in Cayce, South Carolina. The Agency removed Petitioner based on charges of unscheduled absences - absence without leave (AWOL)/being late.
On June 12, 2012, after a hearing, a MSPB Administrative Judge found, among other things, that Petitioner had not been discriminated against because of his national origin and sustained the removal action.2 Petitioner filed a petition to the full Board seeking a review of the initial decision. On May 30, 2013, the full Board issued a Final Order upholding the initial decision. Petitioner, through his attorney, filed the instant petition with the Commission. Petitioner does not raise any specific objection to the MSPB's decisions, but merely requests "a review of 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 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 an incorrect interpretation of any applicable law, rule, regulation or policy directive, or is not 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 record indicates that attendance related disciplinary actions were taken against employees of various national origins/races at the facility where Petitioner was employed. Petitioner did not dispute this fact or, as previously noted, any other aspect of the MSPB decisions. 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. Further, the Board's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (Z0610)
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
__9/19/13________________
Date
1 Although he also alleged discrimination based on race, the Commission considers the term "Hispanic" to be a description of national origin not of race.
2 The MSPB AJ found that Petitioner committed the four (4) unscheduled absences that were the subject of his proposed removal letter. Previously, Petitioner had three (3) prior disciplinary actions (two letters of warning and a 14-day paper suspension).
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0320130030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320130030