0320090033
03-12-2009
Martino Widjaja, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Martino Widjaja,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320090033
MSPB No. DE0752070454I2
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.
The record establishes that effective January 17, 2007, the agency
removed petitioner for alleged misconduct from his position of Medical
Technologist, GS-09, at the VA Medical Center in Grand Junction,
Colorado. Petitioner was removed on the charges of failure to follow
instructions, failure to follow leave procedures, and for bringing a
concealed weapon onto federal property. Specifically, with respect to the
failure to follow instructions, agency management asserted that petitioner
neglected to follow quality control procedures relating to blood samples.
With respect to leave procedures, petitioner was on leave restrictions and
he did not bring in a medical excuse to cover an absence in November 2006.
Finally, with respect to the weapons charge, a fanny pack containing a
loaded 9mm handgun was found in a men's restroom at the workplace. It
contained petitioner's identification card and the police were called.
It should be noted that petitioner was found guilty by the U.S. District
Court for the District of Colorado of the criminal charge of possessing
a firearm.
Petitioner filed a mixed case complaint alleging that he was
discriminated against on the bases of national origin (Black/Native
American), color (dark), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when he was removed
from his position. Following an investigation into the allegation,
the agency issued a decision in November 2007 finding that petitioner
was not discriminated against as alleged. Petitioner had filed his
MSPB appeal before the decision was issued and the matter was dismissed
without prejudice. However, petition had permission to wait until the
criminal charges against him were processed, and as such re-filed his
appeal with the MSPB in April 2008. Following a hearing, a MSPB AJ issued
a decision upholding the reasons for petitioner's removal. The MSPB AJ
further concluded that there was no discrimination or reprisal because
petitioner failed to show that the agency's articulated reasons for
removing him were a pretext for discrimination. Petitioner then filed
the instant petition.
EEOC regulations provide that the Commission has jurisdiction over
mixed case complaints 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 (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
March 12, 2009
__________________
Date
2
0320090033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090033