0320090008
01-08-2009
Armando H. Calvetti, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Armando H. Calvetti,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320090008
MSPB No. DA0752070299B1
DECISION
On October 10, 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 Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Petitioner alleged that he was discriminated against on the basis of
reprisal for prior protected EEO activity when, on April 16, 2004, he was
removed from his position with the agency as a Lead Supply Technician,
GS-7, based on a charge of absence without leave (AWOL).
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued
an initial decision finding no reprisal. Petitioner sought review by the
Full Board and in a decision dated September 10, 2008, the Board denied
petitioner's request. Petitioner then filed the instant petition.
The MSPB AJ determined that in a letter dated March 1, 2004, petitioner's
first-line supervisor proposed his removal for being AWOL since December
2, 2003. The letter alleged that petitioner's extended absence was
unauthorized and that he did not respond to repeated requests by the
agency to provide proper medical documentation to justify his absence
and to submit a request for leave. Complainant did not respond to the
proposed removal, and the charge was sustained and the removal became
effective. The AJ concluded that the evidence presented at the hearing
sustained the AWOL charge and the agency's contention that the medical
note complainant submitted was insufficient to comply with medical
documentation requirements and that petitioner did not provide the
agency with the additional documentation it requested. Moreover, the
AJ noted that petitioner did not submit a leave request as required by
the agency's collective bargaining agreement. Finally, the AJ concluded
that petitioner failed to prove, by a preponderance of the evidence, that
there was a genuine nexus between his removal and his prior protected
EEO activity. The AJ noted that petitioner's prior EEO complaint was
in 1998, and did not involved the supervisor who issued the removal
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 8, 2009
__________________
Date
2
0320090008
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090008