0320120027
01-25-2013
Michael S. Wilkes, Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Michael S. Wilkes,
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320120027
MSPB No. SF0752110584I2
DECISION
On February 15, 2012, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (the Commission) for review of the Final Order of the Merit Systems Protection Board (MSPB or Board) issued December 12, 2011,1 concerning his claim that the Agency discriminated against him on the basis of disability, race (Black) and reprisal (prior protected EEO activity) when he was removed from the position of Rigger, WG-5210-10, Step 5 at the Agency's Naval Facilities Engineering Command-Southwest in San Diego, California, for "Unavailability for Work," effective July 31, 2010, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. The MSPB found that the Agency had not engaged in discrimination as alleged by Petitioner.
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 an incorrect interpretation of any applicable law, rule, regulation or policy directive, or is not 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, including matters submitted by the Petitioner, 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. Further, the Board's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (Z0610)
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
__1/25/13________________
Date
1 The decision became final on January 16, 2012.
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0320120027
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120027