0320080027
03-05-2008
Wanda G. Best, Petitioner, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Wanda G. Best,
Petitioner,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Petition No. 0320080027
MSPB No. DC0752070673I1
DECISION
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 her claim of discrimination
alleging a violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner alleged that she was discriminated against on the basis of
disability (sarcoidosis) when she was removed from her position of Program
Specialist, GS-0401-11, for medical inability to report for duty.
A hearing was held and thereafter a MSPB Administrative Judge (AJ)
issued an initial decision upholding petitioner's removal and finding
that she was not discriminated against as alleged. Petitioner sought
review by the full Board, which denied her petition. 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).
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. Even assuming petitioner is a person with a disability,
she has not established that the accommodation that she was requesting
would have allowed her to perform the essential functions of her
position. 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 5, 2008
__________________
Date
2
0320080027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0320080027