0320080080
08-06-2008
Paul R. Overstreet, Petitioner, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Paul R. Overstreet,
Petitioner,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Petition No. 0320080080
MSPB No. DE0752070008I1
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 (alcoholism) when he was removed from his position
of Accountant, GS-0510-12, with the Office of the Special Trustee,
Office of Trust Funds Management, Branch of Accounting Processing,
effective September 14, 2006. The record reflects that, in early 2005,
the Office of Personnel Management (OPM) informed the agency that it had
received information from the Federal Bureau of Investigation concerning
petitioner's multiple DUI arrests. OPM informed the agency that the
issues identified might impact on petitioner's suitability. Thereafter,
the agency undertook a suitability review and, because of petitioner's
record, determined he did not meet the suitability standards for his
public trust position. Petitioner's removal was proposed, and petitioner
provided a response. After taking into consideration petitioner's
response, the agency terminated his employment.
A hearing was held and thereafter a MSPB Administrative Judge (AJ)
issued an initial decision finding petitioner was not discriminated
against as alleged and upholding the removal. The AJ found petitioner
had a 15 year pattern of alcohol abuse and related off-duty misconduct
that was disqualifying. The AJ concluded that the agency could hold
petitioner to the same qualification standards for employment as it did
other employees.
Petitioner sought review by the full Board, which denied his
petition. Petitioner then filed his petition with the Commission.
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 (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 (Z0408)
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
August 6, 2008
__________________
Date
2
0320080080
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080080