03a30027
03-18-2003
Michael Daluz, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Michael Daluz v. Department of Veterans Affairs
03A30027
March 18, 2003
.
Michael Daluz,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A30027
MSPB No. AT-0752-01-0820-I-1
DECISION
On December 24, 2002, 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.
The MSBP found that the Department of Veterans Affairs (agency) had not
engaged in discrimination as alleged by petitioner. For the following
reasons, the Commission concurs with the MSPB's decision.
Petitioner, a Psychology Technician, GS-0181-07, at the agency's Medical
Center in Miami, Florida, alleged that he was discriminated against on
the basis of disability (Post Traumatic Stress Disorder, or PTSD) when
he was removed from his position. Petitioner filed a mixed case appeal
with the MSPB and after a hearing, an MSPB Administrative Judge (AJ)
found there was nothing in the record which indicated petitioner was an
individual with a disability covered by the Rehabilitation Act. The AJ
further found that even if the record did contain such evidence, the
agency's contention that petitioner rejected its attempts to accommodate
his disability was credible. Finally, the AJ found that the agency's
reason for terminating petitioner (i.e., frequent abuse of leave,
not following proper leave procedures, leaving the work site without
permission and failure to follow supervisory instructions) supported
the termination. The Board denied petitioner's petition for review.
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).
At the outset, we note that in examining petitioner's claim of disability
discrimination, we presume, without finding, that petitioner is an
individual with a disability covered by the Rehabilitation Act, and
thus entitled to a reasonable accommodation. The record reflects that
as an accommodation, petitioner wanted a position that did not require
interaction with PTSD patients. When petitioner's supervisor indicated a
willingness to put petitioner in such a position, petitioner rejected it;
he wanted to continue working with PTSD patients. Regarding petitioner's
absences, initially the agency was lenient in allowing petitioner to
take excessive amounts of leave. When petitioner's patients began
complaining about the frequent cancellation of their appointments,
the agency informed petitioner as to the appropriate leave procedures,
including telling him that if he sought leave without pay (complainant
had exhausted all of his leave), he must obtain approval in advance.
The Commission notes that the file contains evidence that petitioner
believed he was not required to follow proper leave procedures because
he suffered from a chronic illness. Also, there is no evidence in the
record that petitioner ever indicated to the agency that his absences
were associated with his illness. Finally, to the extent that petitioner
is alleging disparate treatment, he failed to submit evidence that the
agency's stated reasons for the removal were pretext for discrimination.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no 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 (W0900)
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 (Z1199)
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
March 18, 2003
__________________
Date