0320090025
03-24-2009
Rita S. Johnson, Petitioner, v. Pete Geren, Secretary, Department of the Army, Agency.
Rita S. Johnson,
Petitioner,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Petition No. 0320090025
MSPB No. DC-0752-08-0584-I-1
DECISION
On November 26, 2008, 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 her 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.
During the relevant period, petitioner was employed as a Practical Nurse
in a neo-natal unit at a Virginia facility of the agency. Effective May
29, 2008, the agency removed petitioner from Federal employment, citing
"false statement." The agency found that petitioner knowingly provided
false statements or intended to mislead the agency with responses on
her Declaration for Federal Employment, initially dated July 31, 2006.
Subsequently, petitioner filed a mixed case appeal with the MSPB, alleging
that the agency discriminated against her on the basis of disability
("having a record") when it terminated her employment.
A hearing was held and thereafter, on September 24, 2008, an MSPB
Administrative Judge (AJ) issued an Initial Decision finding no
discrimination. Specifically, the AJ noted that petitioner cited "having
a [criminal] record" as her disability and such is not an allegation
of disability discrimination. Further, the AJ stated that petitioner
indicated that her removal was based on complications from breast surgery;
however, she acknowledged that she did not request accommodation based
on such medical condition and the record shows that management was
not aware of the condition for some time and her removal was based
solely on her falsification of employment documents. Petitioner then
filed the instant petition, asking for "further administrative review."
In response to petitioner's filing, the agency asked this Commission to
deny further review or concur with the MSPB finding of no discrimination,
stating that petitioner failed to identify with any specificity an error
in interpretation by the MSPB AJ. The agency noted that petitioner wrote
only one line in which she asked for "further administrative review."
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 (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 24, 2009
__________________
Date
2
0320090025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090025