0320070104
09-05-2007
Bart D. Kimber, Petitioner, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Bart D. Kimber,
Petitioner,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320070104
MSPB No. SF-0752-06-0697-I-1
DECISION
On July 28, 2007, 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 was a Firefighter at the agency's facility at Camp Pendleton,
California. Petitioner alleged that he was discriminated against on the
bases of disability (Post Traumatic Stress Disorder) and reprisal1 when,
effective May 17, 2006, he was removed from his position. The agency
charged petitioner with excessive unauthorized absence/absence without
leave and failure to follow instructions/order.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that the agency had supported the
removal action. Further, the MSPB AJ determined that petitioner failed
to show that the removal action constituted unlawful discrimination
and/or retaliation. As to petitioner's claim of reprisal, the MSPB AJ
found that the agency provided legitimate, nondiscriminatory reasons for
the removal action, namely petitioner's absences and failure to follow
instructions. Further, the MSBP AJ determined no pretext for retaliation.
As to the petitioner's claim of disability based discrimination, the
MSPB AJ concluded that even assuming petitioner had shown that he was
disabled, he did not proven that he was a qualified individual with
a disability. The MSPB AJ indicated that petitioner had not provided
an accommodation that would have enabled him to perform the essential
functions of his position or that there was another position to which
he could be reassigned.
Petitioner filed a petition for review with the Board. On June 25, 2007,
the Board issued its Final Order denying the petition. This petition
to the Commission followed.
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).
For the purposes of analysis, we assume petitioner is an individual with
a disability. 29 C.F.R. � 1630.2(g)(1). 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 (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
September 5, 2007
__________________
Date
1 The record indicated that petitioner had filed prior EEO complaints
alleging a violation of Title VII.
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0320070104
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070104