0320080081
09-05-2008
Thomas C. Sellers, Petitioner, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Thomas C. Sellers,
Petitioner,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320080081
MSPB No. SF0752070544I2
DECISION
On June 9, 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.
Petitioner alleged that he was discriminated against on the basis of
disability (Back Injury) when he was removed from his position of Heavy
Mobile Equipment Mechanic Repairer, assigned to the Maintenance Center at
the Marine Corps Logistic Base (MCLB) in Barstow, California. According
to the Notice of Proposed Removal, effective May 3, 2007, petitioner
was charged with (l) Unauthorized Absence; (2) Unauthorized Absence and
Failure to Follow Procedures to Request Leave; (3) Unauthorized Absence
and Leaving the Work Area Without Permission; (4) Disrespectful Conduct;
and (5) Sleeping on Duty.
Review of the record reveals that petitioner was absent from work
on several dates cited in the removal notice and he did not obtain
approved leave on the dates cited by the agency in the notice.
Petitioner's immediate supervisor testified that the specifications
included in the first three charges in the proposal letter were based
on his observations as to when petitioner was absent from work and his
decisions to deny leave to petitioner. In making these decisions, he
stated that he treated petitioner the same as the other (approximately 30)
employees he supervised. Petitioner's supervisor stated that he does not
approve annual or sick leave for his employees unless they have already
accrued the amount of leave requested. He maintained that he determines
the amount of leave accrued by employees by reference to an electronic
time and attendance system. Petitioner's supervisor further maintained
that he does not approve leave without pay requests unless the employee
submits "supporting documents." The agency also submitted copies of
excerpts from petitioner's electronic time and leave record (Master
Time History) showing that petitioner was charged Absence Without Leave
(AWOL) for all of the 26 periods identified in the first three charges.
At the hearing, petitioner did not refute any of the information provided
by the agency in support of the 26 specifications of AWOL.
Concerning charge 4 of the removal notice, the record indicates that
petitioner became disrespectful toward his supervisor when asked about
a leave-related matter. Regarding charge 5 of the removal notice, the
record shows that petitioner was found sleeping on duty by his supervisor
and other work leaders. Petitioner also did not refute these accounts
at hearing.
Following a hearing, the Administrative Judge (AJ) found that the
testimony of agency officials was more credible than that of petitioner.
Of note, petitioner's supervisors stated that petitioner had received
prior warnings regarding his unacceptable conduct, including a
previous attempt by the agency to remove him for AWOL. With respect to
petitioner's disability claim, the AJ found that agency officials had
articulated legitimate, nondiscriminatory reasons for its actions in
this matter. The AJ noted that "the agency provided unrebutted evidence
supporting every specification in the proposal letter. The appellant
provided no testimony or other evidence showing that the real motivation
of the agency was to remove him because he had suffered a back injury."
In effect, petitioner failed to produce any evidence suggesting that the
agency's cited reasons for his removal were pretexts for discrimination.
Petitioner sought review by the full Board, but the Board denied
petitioner's petition for review. Thereafter petitioner filed the
instant petition with the Commission, where he made arguments mainly
asserting that the AJ failed to consider the entire record concerning
his discrimination claim.
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.
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 5, 2008
_________________
Date
2
0320080081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080081