Everette Jones, Petitioner,v.Robert M. Gates, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionAug 18, 2009
0320090076 (E.E.O.C. Aug. 18, 2009)

0320090076

08-18-2009

Everette Jones, Petitioner, v. Robert M. Gates, Secretary, Department of Defense, Agency.


Everette Jones,

Petitioner,

v.

Robert M. Gates,

Secretary,

Department of Defense,

Agency.

Petition No. 0320090076

MSPB No. DE0752080270I1

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.

Petitioner alleged that he was discriminated against on the bases of

race and reprisal when he was removed from his position of Meatcutting

Worker, WG-7407-05, effective February 28, 2008. Petitioner was removed

for being absent without leave (AWOL) for 18 months.

Petitioner requested a decision based on the written record, and

thereafter an MSPB Administrative Judge (AJ) issued an initial decision

sustaining the charge of AWOL1. The AJ found that petitioner was properly

place don AWOL in September 2006, and failed to provide administratively

acceptable medical documentation to justify his continued absence. With

respect to petitioner's discrimination claims, the AJ noted that

petitioner did not identify any comparative employees. Further, to the

extent petitioner raised reprisal claims, the AJ found that the agency's

reason for taking the removal action was because of the seriousness

of his AWOL. Petitioner filed a petition for review with the full Board

which denied the petition. Petitioner then filed the instant petition,

but made no arguments therein.

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. Petitioner has failed to show that the agency's

reasons for its actions were a pretext for discrimination or reprisal.

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

August 18, 2009

__________________

Date

1 Petitioner filed an earlier appeal with the MSPB involving a

constructive suspension. The AJ dismissed the matter for lack of

jurisdiction, finding that petitioner failed to provide medical

documentation to the agency as requested. The dismissal was ultimately

upheld by the United States Court of Appeals for the Federal Circuit,

No. 2008-3166 (July 10, 2008). The file on the previous appeal was

included with the instant petition.

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0320090076

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0320090076