03A40034
01-09-2004
Lawrence M. Burgess, Petitioner, v. Gale A. Norton, Secretary, Department of the Interior (National Park Service), Agency.
Lawrence M. Burgess v. Department of the Interior
03A40034
January 9, 2004
.
Lawrence M. Burgess,
Petitioner,
v.
Gale A. Norton,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Petition No. 03A40034
MSPB No. DC-0353-01-0446-I-1
DECISION
On November 19, 2003, 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, a Supervisory Park Ranger, GS-11, at the agency's Anacostia
Park facility, alleged that he was discriminated against on the basis of
disability (back injury) with regard to his restoration to duty following
a ten-month absence related to an on-the-job injury.
On April 23, 2001, petitioner filed a mixed case appeal with the MSPB.
The MSPB Administrative Judge (AJ) assigned to the case issued a decision
finding that the Board lacked jurisdiction. However, on October 24,
2003, the full Board issued an Opinion and Order finding as follows:
the Board had jurisdiction over petitioner's appeal; the agency did not
violate petitioner's restoration rights when, upon his return to duty,
he was assigned to Anacostia Park rather than his previous duty station
at the Frederick Douglass House; and the agency did not discriminate
against petitioner based on disability in connection with his restoration.
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
January 9, 2004
__________________
Date