0320080087
08-27-2008
Acie Lyons, Petitioner, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Acie Lyons,
Petitioner,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080087
MSPB No. PH0752070365I1
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 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.
Petitioner filed an appeal with the MSPB alleging that he was
discriminated against on the bases of disability (back) and reprisal for
prior protected EEO activity when he was removed from his position with
the agency as a Sewing Machine Operator, WG-03. On May 5, 2006, agency
management proposed petitioner's removal based on the charge of inability
to maintain a regular work schedule since June 2005 and because his most
recent medical documentation indicated an inability to perform the duties
of his position. Following petitioner's response to the proposal, the
agency issued a decision removing petitioner effective August 11, 2006.
Petitioner appealed the removal decision to the MSPB.
Briefly, petitioner sustained a work-related injury to his back in
September 2003 and was eventually approved for workers' compensation
benefits. The Department of Labor's Office of Workers' Compensation
Programs (OWCP) terminated petitioner's benefits in 2005, when it
determined that he had recovered from his injury. The agency initially
approved 432 hours of leave without pay for petitioner, and then ordered
him to return to work, warning him that failure to do so could result
in an adverse action. Petitioner asserted that he was not physically
able to perform the duties of his position and did not return to work.
The agency placed him in an absent without official leave (AWOL) status
and later proposed his removal.
A hearing was held on the matter, and thereafter a MSPB Administrative
Judge (AJ) issued an initial decision upholding the removal, finding
no discrimination or reprisal. The AJ determined that, even assuming
petitioner had a disability,1 he did not show that he could perform
the essential functions of his sewing machine operator position, with
or without reasonable accommodation. In addition, the AJ noted that
there were no positions to which petitioner could be reassigned for
which he qualified. Further, to the extent that petitioner desired to
continue doing the light duty tasks he had performed under the workers'
compensation program, the AJ found that the agency did not have a
responsibility under the Rehabilitation Act to provide "make work"
to petitioner. Rather, its reassignment duty was limited to searching
for vacant positions for which petitioner qualified. As already noted,
the AJ determined the evidence of record did not establish that such a
position was available. As to petitioner's claim of reprisal, the AJ
found that petitioner failed to show any nexus between his protected
activity and the agency's actions.
Petitioner sought review of the AJ's decision by the full Board, but the
Board denied his request. 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. 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 27, 2008
_________________
Date
1 The Commission assumes, for purposes of this decision, that petitioner
is a person with a disability. 29 C.F.R. � 1630.2(g).
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0320080087
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080087