0320090065
07-07-2009
Janet Howard, Petitioner, v. Gary Locke, Secretary, Department of Commerce, Agency.
Janet Howard,
Petitioner,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Petition No. 0320090065
MSPB No. DC04320805091I
DENIAL OF CONSIDERATION
On June 1, 2009, 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 Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner alleged that she was discriminated against on the bases of
race (Black), sex (female), disability (blood pressure), age (60 years at
time of incident), and reprisal for prior protected EEO activity under
a statute that was unspecified in the record, when she was removed from
the agency, effective April 25, 2008.
An MSPB Administrative Judge (AJ) issued an initial decision finding
that petitioner had requested a decision without a hearing. The AJ
further issued sanctions against petitioner for repeated noncompliance
with the AJ's orders concerning discovery. Specifically, the AJ ordered
that petitioner could not introduce evidence to support any claim of
employment discrimination or reprisal, and could not rely on testimony
related to such claims. Therefore, while noting petitioner, as a
result of the sanction, "has not met her burden of proving any of these
[discrimination] claims," the AJ's decision did not further address the
merits of petitioner's discrimination claims. Petitioner sought review
by the full Board, and in a decision dated May 19, 2009, the Board denied
petitioner request. Petitioner then filed the instant petition.
EEOC regulations provide that the Commission has jurisdiction over
allegations of discrimination raised in connection with an action
appealable to the MSPB. See 29 C.F.R. � 1614.302. Here, the MSPB AJ ruled
that, as a sanction, petitioner could not introduce evidence in support
of her discrimination claims, and the full Board denied petitioner's
request for review. The Commission generally has no authority to
review how a MSPB AJ conducts the appeals process or over matters
such the issuance of sanctions. Because the MSPB, in essence, did not
address petitioner's discrimination claims, there are no matters within
the Commission's jurisdiction to review. Consequently, the Commission
denies the petition for review.
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
July 7, 2009
__________________
Date
2
0320090065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320090065