0320070042
02-16-2007
Dennis M. Fuentes, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Dennis M. Fuentes,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 0320070042
MSPB No. CH0752050482I3
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner alleged that he was discriminated against on the bases of
national origin (Hispanic), sex (male), age (over 40 years old) and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when he was removed from his position with the agency
as a Procurement Analyst, GS-12, on the charge of "conduct unbecoming
that of a federal employee." Briefly, he was charged with exceeding the
limits of his contracting officer's warrant when he made an unauthorized
commitment. He was also charged with creating a disturbance in the office
and exhibiting unprofessional conduct towards a branch chief.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision upholding the first charge regarding the
contract warrant, but concluding that the agency failed to support
its specification regarding the incident with the branch chief. With
regard to petitioner's discrimination claim, the MSPB AJ concluded that
petitioner did not establish disparate treatment because he did not show
that the employees to whom he compared himself were similarly situated or
that the deciding official had involvement with the discipline of others.
The MSPB AJ mitigated the action from a removal to a 60-day suspension.
Petitioner sought review by the full Board which 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 (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
February 16, 2007
__________________
Date
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0320070042
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320070042