Jeffrey Thom, Petitioner,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 26, 2010
0320100046 (E.E.O.C. Oct. 26, 2010)

0320100046

10-26-2010

Jeffrey Thom, Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.


Jeffrey Thom,

Petitioner,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Petition No. 0320100046

MSPB No. DA-0752-09-0367-I-1

DECISION

On July 21, 2010, 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.

BACKGROUND

During the relevant period, Petitioner worked as a Heavy Mobile Equipment Operator (Term Appointment, not-to-exceed June 1, 20061) at the Red River Army Depot, Texas. Effective November 27, 2005, the Agency removed Petitioner from Agency employment, citing "Unauthorized Absences." The Agency stated that Petitioner was absent without official leave (AWOL) from September 15, 2005 to October 13, 2005. On March 17, 2009, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of disability (hypertension, knee and shoulder injuries, and depression) and reprisal for prior protected EEO activity when it terminated his employment.2

An MSPB Administrative Judge (AJ) conducted a hearing and issued an Initial Decision on Petitioner's appeal. The AJ affirmed the Agency's action and found that Petitioner failed to show that the action was motivated by discriminatory animus based on disability or reprisal. Specifically, the MSPB AJ stated "preponderant evidence supports the agency's charge that the [Petitioner] was AWOL from September 14, 2005 through October 13, 2005, and that he failed to request leave or inform the agency of his whereabouts and medical condition." Further, the MSPB AJ concluded that Petitioner failed to show how he could be accommodated to perform the essential functions of his Heavy Mobile Equipment Mechanic position and failed to even try a reassignment position the Agency offered him at his request. Petitioner sought review by the full Board. The Board affirmed the removal but modified the Initial Decision to review the penalty for reasonableness. Subsequently, the Board sustained the removal penalty for unauthorized absence.

Petitioner filed the instant petition with the EEOC. Petitioner alleged that he was medically and emotionally incapacitated during his absence and could not handle his regular affairs.

ANALYSIS AND FINDINGS

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).

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. There is no dispute that Petitioner was absent without leave from September 14, 2005 to October 13, 2005, as alleged by the Agency. Moreover, while Petitioner now claims he was absent due to a medical condition, the record establishes that he did not provide this explanation or relevant medical documentation to his supervisor or the deciding official prior to the removal decision.

Even if we assume for the purpose of analysis that Petitioner is an individual with a disability, he has not established that the Agency failed to meet its obligation to provide reasonable accommodation. Petitioner failed to report to work or be regular in attendance, or to communicate with Agency management about his absences and when he would return to work. Moreover, when the Agency granted his request for a transfer, Petitioner admitted he did not return to work or contact his supervisors. We are not persuaded that evidence of record supports his contention that medical or mental incapacitation prevented him from contacting his supervisor or the deciding official about his absences.

Accordingly, we find that the MSPB 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 (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

___October 26, 2010____

Date

1 We note that initially the maximum end date was June 1, 2005.

2 We note that Petitioner filed an EEO complaint alleging harassment (reassignment, discipline, and close monitoring). Petitioner sought to amend his complaint, at the hearing stage, with the issue of removal and, subsequently, sought to remand the entire harassment claim to the MSPB. An EEOC Administrative Judge severed the removal from the harassment claim and remanded it to the Agency for mixed case processing.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0320100046

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0320100046