Joyce Branch-Williams, Petitioner,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 18, 2009
0320090018 (E.E.O.C. Sep. 18, 2009)

0320090018

09-18-2009

Joyce Branch-Williams, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Joyce Branch-Williams,

Petitioner,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 0320090018

MSPB No. PH0752060522I1

DISMISSAL OF PETITION

On December 5, 2008, petitioner filed a timely petition with the Equal

Employment Opportunity Commission (EEOC or 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.

Petitioner filed an EEO complaint alleging, in pertinent part, that she

was retaliated against for prior EEO activity when she was terminated

on September 30, 2005. Following an investigation, the agency issued a

final agency decision (FAD) on June 6, 2006, upholding the removal and

finding no reprisal discrimination. Petitioner filed an appeal with

the MSPB. Following a hearing, an MSPB Administrative Judge issued a

decision on October 3, 2006, upholding the removal and finding no race

or age discrimination, and finding no retaliation for prior EEO activity.

Petitioner's petition for review was denied by the full Board on February

2, 2007.

Prior to receiving the FAD, on May 24, 2006, petitioner filed a civil

action 06-1327 with the United States District Court for the District of

Maryland alleging, in pertinent part, that she was retaliated against

for prior EEO activity when she was terminated on September 30, 2005.

On April 2, 2007, the court upheld the removal and found no reprisal

discrimination on the merits. Petitioner did not appeal. Branch-Williams

v. Department of Veterans Affairs, 2007 WL 4468708 (D.Md. 2007).

Petitioner appealed the above full Board MSPB decision upholding her

removal to the United States Court of Appeals for the Federal Circuit.

On July 13, 2007, the Federal Circuit vacated the MSPB's decision

with instructions that it dismiss petitioner's MSPB appeal for lack

of subject matter jurisdiction. It reasoned that petitioner filed a

civil action on the same matter in the United States District Court

for the District of Maryland referenced above, and hence she chose

the District Court as her single forum. It found that the District

Court already addressed the matter, and she "has had her day in court."

Branch-Williams v. Department of Veterans Affairs, 244 Fed.Appx. 345,

2007 WL 2044242 (C.A.Fed. 2007).

The MSPB issued a decision on October 23, 2007, complying with the

instruction of the United States Court of Appeals for the Federal

Circuit. Petitioner appealed this MSPB decision to the United States

Court of Appeals for the Federal Circuit. The Federal Circuit issued

a decision on June 3, 2008, ruling against petitioner. It found that

in taking its action, the MSPB complied with instructions previously

mandated by the Federal Circuit, which was now the law of the case.

Branch-Williams v. Department of Veterans Affairs, 311 Fed.Appx. 335,

2008 WL 5647522 (C.A.Fed. 2008). Petitioner filed a writ of certiorari

with the United States Supreme Court, which was denied on October 6, 2008.

Branch-Williams v. Department of Veterans Affairs, 129 S.Ct. 183 (2008).

On December 1, 2008, the United States Supreme Court denied petitioner's

petition for a rehearing. Branch-Williams v. Department of Veterans

Affairs, 129 S.Ct. 675 (2008). On December 5, 2008, petitioner filed

a petition with the EEOC.

Petitioner argues that the MSPB should have known that it lacked subject

matter jurisdiction, and asks for relief. As found by the United

States Court of Appeals for the Federal Circuit, we find that petitioner

already chose the United States District Court as her single forum,

that the District Court already addressed the termination matter, and

she "had her day in court." This is consistent with our regulations.

The regulation found at 29 C.F.R. � 1614.409 provides that the filing

of a civil action "shall terminate Commission processing of the appeal."

Petitioner's petition is dismissed.

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

September 18, 2009

__________________

Date

2

0320090018

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0320090018