0320070090
07-31-2007
Daniel P. Pinegar, Petitioner, v. Michael E. Toner, Chairman, Federal Election Commission, Agency.
Daniel P. Pinegar,
Petitioner,
v.
Michael E. Toner,
Chairman,
Federal Election Commission,
Agency.
Petition No. 0320070090
MSPB No. CB-7121-07-001-V-1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of an Opinion and 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 alleged that he was discriminated against on the bases of
sex (male), disability (mental), and reprisal when he was removed from
his position of Attorney, GS-12. Petitioner was removed based on two
charges of disruptive behavior and seven specifications of inappropriate
remarks.
Petitioner filed a grievance on his removal. The matter went to
arbitration and a hearing was held. The arbitrator upheld petitioner's
removal. Thereafter, petitioner filed for review of the arbitrator's
decision with the MSPB. In an Opinion and Order, the MSPB upheld
the removal, finding that petitioner did not support his claims of
discrimination. Petitioner then filed the instant petition for review
with the Commission, making essentially the same arguments that he made
before the MSPB.
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 sex,
reprisal, or disability discrimination. The Commission notes that, even
assuming that petitioner is disabled, the Commission's Enforcement
Guidance on the Americans with Disabilities Act and Psychiatric
Disabilities at Question 30 specifically indicates that an employer may
discipline an individual with a disability for violating work place
conduct standards even if the misconduct results from a disability.
Further, to the extent that petitioner argued that the agency should
have accommodated him after the incidents instead of removing him,
Question 31 of the same guidance states that reasonable accommodation is
prospective and employers are not required to excuse past misconduct.
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.
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
July 31, 2007
__________________
Date
2
0320070090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070090