0320080083
09-05-2008
Randy G. Moeller, Petitioner, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Randy G. Moeller,
Petitioner,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080083
MSPB No. DA-0752-08-0154-I-1
DECISION
On July 5, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a final decision
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
During the pertinent period, petitioner was employed as a Medical Supply
Technician at an Oklahoma City, Oklahoma medical center of the agency.
On December 20, 2007, petitioner filed an MSPB appeal in which he asserted
the affirmative defense that the agency discriminated against him on the
bases of disability (lumbar spine injury), sex (male), and reprisal for
prior protected EEO activity when it removed him from Federal employment
for "inability to perform essential functions of position," effective
November 21, 2007.
An MSPB Administrative Judge (AJ) held a hearing and, thereafter,
issued an Initial Decision finding no discrimination. Specifically,
the AJ concluded that petitioner failed to show that he is a "qualified"
individual with a disability or that the agency's action was motivated
by discriminatory factors. The MSPB Initial Decision became final on
June 5, 2008. Then, petitioner filed the instant 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 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. 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
September 5, 2008
__________________
Date
2
0320080083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0320080083