0320080090
08-26-2008
Michael D. Ray, Petitioner, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Michael D. Ray,
Petitioner,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Petition No. 0320080090
MSPB No. SF0752070132I1
DECISION
On July 25, 2008, 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 filed with the MSPB, petitioner alleged that he was
discriminated against on the basis of disability (Adjustment Disorder,
Major Depression, Organic Anxiety Disorder) when he was removed from
the agency, effective November 4, 2006, for excessive absences.
A hearing was held and thereafter a MSPB Administrative Judge (AJ) issued
an initial decision finding, among other things, no discrimination.
Petitioner sought a review by the full Board, and in a decision dated
August 17, 2007, the Board denied the petition for review. Petitioner
then filed the instant petition.
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).
At the time of the events at issue, complainant was employed by the
Defense Commissary Agency (agency) as a full-time Meatcutting Worker,
WG-05. The record establishes that petitioner had been continuously
absent from work due to his psychological impairments1 since September
12, 2001. Sometime later, he began receiving social security disability
benefits due to his inability to work. On September 18, 2006, petitioner
was issued a notice of proposed removal. Following a response from
petitioner, the agency issued its Decision on Proposed Removal on October
23, 2006, removing petitioner from agency employment effective November 4,
2006, for excessive absence.
The record further establishes that the agency had previously sought to
remove petitioner due to his extended unavailability for work on May 31,
2003, but later rescinded its decision on July 30, 2004. Petitioner was
then ordered to return to work but failed to do so, and the agency placed
him on Leave Without Pay (LWOP). Petitioner was again ordered to return
to work on July 1, 2006, and again failed to do so. In a memorandum
dated August 9, 2006, the agency warned petitioner that his extended
absence from work was having an adverse impact on the organization,
including "understaffed operations" and the placement of "an extra burden
on others to accomplish [petitioner's] work in addition to their own."
The memorandum warned petitioner that "an adverse action may be initiated
unless you become available to work."
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. It is undisputed that complainant's medical condition
precluded him from performing an essential function of his position-the
need to be present full-time to perform his work. The MSPB found
that although petitioner appeared to allege that the agency failed
to offer him a reasonable accommodation, he did not articulate and
the MSPB AJ could not discern, any form of accommodation that was
available that would have assisted him in coming to work. Therefore,
the MSPB concluded that petitioner was not a "qualified" individual
with a disability as defined by the Rehabilitation Act, and could not
prove a claim of disability 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
August 26, 2008
__________________
Date
1 For purposes of this decision the Commission assumes without finding
that complainant is an individual with a disability. 29 C.F.R. �
1630.2(g)(1).
??
??
??
??
2
0320080090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080090