0320070035
02-08-2007
Edward C. Dedrick, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Edward C. Dedrick,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 0320070035
MSPB No. PH0752050593I1
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 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 basis of
disability ("intermittent explosive disorder") when he was removed from
his position of General Engineer. Petitioner was removed for conduct
unbecoming a federal employee, creating a disturbance in the work place,
destruction of personal property of a supervisor, destruction and misuse
of government property and violating the agency's violence policy.
Petitioner admits that he overturned his supervisor's desk while the
supervisor was sitting at it, hitting the supervisor's legs and knees
and damaging some of the supervisor's personal property and causing
papers to fly all over the room. Petitioner then went to his own office,
threw his computer and monitor and other equipment on the floor, damaging
them. He also kicked things in and threw office supplies on the floor.
Petitioner attributed this to his disability.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding no discrimination and upholding the
removal. Petitioner sought review by the Full Board, but his request
was denied. 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).
The Commission notes that even assuming that petitioner is disabled, or
was regarded as disabled as he argued, 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.
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 8, 2007
__________________
Date
2
0320070035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320070035