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