03A40056
04-30-2004
Rodney L. Ambrose, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Rodney L. Ambrose v. Department of the Navy
03A40056
April 30, 2004
.
Rodney L. Ambrose,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A40056
MSPB No. SF-0752-02-0464-I-1
DECISION
On October 24, 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 former Able Seaman, GP-5, at agency's Virginia Beach
Military Sealift Command, alleged that he was discriminated against on
the basis of disability (Post Traumatic Stress Disorder aggravated by
alcohol use) when he was removed from employment on charges of using a
government vehicle for unauthorized purposes and operating a government
vehicle while under the influence of alcohol.
On May 30, 2002, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge upheld the removal, finding
in relevant part that petitioner had not met his burden of proof with
regard to the affirmative defense of disability discrimination.<1>
The Board denied petitioner's petition for 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<2>, 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
April 30, 2004
__________________
Date
1The MSPB AJ noted that petitioner's allegation of disability
discrimination was limited to the agency's decision not to postpone his
oral reply to the removal action pending his completion of a counseling
program sponsored by the Department of Veterans Affairs.
2For purposes of its review, the Commission assumes without deciding
that petitioner has established coverage under the Rehabilitation Act.