03A10016
04-26-2001
Lloyd W. Rowe, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lloyd W. Rowe v. United States Postal Service
03A10016
04-26-01
.
Lloyd W. Rowe,
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A10016
MSPB No. DC-0752-00-0232-I-1
DENIAL OF CONSIDERATION
On October 16, 2000, Lloyd W. Rowe (hereinafter referred to as petitioner)
filed a petition with the Equal Employment Opportunity Commission (EEOC
or Commission) asking for review of the Merit Systems Protection Board's
(MSPB) final decision issued on his case. The Commission docketed the
petition as EEOC Petition No. 03A10016. In its final decision, the MSPB
administrative judge (AJ) found that petitioner was not discriminated
against in violation of section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq. (1994 & Supp. IV 1999) (Rehabilitation
Act) because of his disability (Hepatitis C) when on November 23, 1999,
the agency discharged petitioner from his job for conducting himself
improperly on September 16, 1999. The Commission accepts this petition in
accordance with the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111 (codified as amended in various sections of 5 U.S.C.) and
EEOC regulations at 29 C.F.R. � 1614.303 et seq. (2000).
ISSUE PRESENTED
Whether the Board's determination that the agency did not discriminate
against petitioner because of his disability constitutes a correct
interpretation of the appropriate laws, rules, regulations and policy
directives, and is supported by the record as a whole.
BACKGROUND
On September 16, 1999, petitioner's supervisor observed that petitioner,
who had been diagnosed with Hepatitis C, appeared drunk on the job while
operating a motor vehicle. On November 23, 1999, the agency discharged
petitioner for improper conduct, and from this discharge petitioner
appealed to the MSPB. The MSPB AJ rejected petitioner's assertion that
medications petitioner took to ameliorate the effect of the Hepatitis
C caused him to buy beer on September 16, 1999, and she upheld the
agency's discharge.
ANALYSIS
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 applicable laws, rules, regulations or policy
directives, or is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In this matter, the administrative judge rejected petitioner's affirmative
defense, that his impairment, Hepatitis C, or the side effects of
petitioner's medication, caused his misconduct. Petitioner offered
no evidence in support of this theory, and the administrative judge
credited the testimony of the agency's expert witness, who testified
that neither the impairment nor its side effects could likely have caused
the misconduct. We find no error in this conclusion.
CONCLUSION
For the reasons as set forth above, the Commission CONCURS with the MSPB's
finding that petitioner failed to show that the agency discriminated
against him on the bases of his disability when on November 23, 1999,
the agency discharged petitioner from his job for improper conduct on
September 16, 1999.
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
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
___04-26-01_______________
Date