Levida Hardy, Petitioner,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 18, 2005
03a50012 (E.E.O.C. Mar. 18, 2005)

03a50012

03-18-2005

Levida Hardy, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Levida Hardy v. Department of the Army

03A50012

March 18, 2005

.

Levida Hardy,

Petitioner,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Petition No. 03A50012

MSPB No. SE-0752-04-0105-I-1

DECISION

On December 13, 2004, the 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. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. The petitioner was a Budget Officer-GS-13

with the Army Corps of Engineers at the agency's facility in Honolulu.

The petitioner alleged that the agency discriminated against her on the

bases of her race (African-American), sex (female), disability (Major

Depression and Somatization), and reprisal for prior Title VII activity

when the agency removed her from Federal Service.

On January 9, 2003, the petitioner filed a mixed case appeal with

the MSPB. After a hearing, the Administrative Judge (AJ) found that the

petitioner had not established that her race, sex or reprisal were factors

in the agency's removal decision. With regard to the disability claim,

the AJ found that, to the extent that the agency was made aware of the

petitioner's medical condition,<1> the agency provided the petitioner

with an extension of her tour of duty, an extension of the time limits

to exercise her re-employment right, granted her extensive leave and

permitted her to work

part-time.<2> The petitioner sought review by the full Board, but the

Board denied her 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 and for the foregoing reasons,

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

March 18, 2005

__________________

Date

1 For the purpose of analysis, we assume without finding that the

petitioner is an individual with a disability. See 29 C.F.R. �

1630.2(g)(1).

2 The petitioner had been warned that her statutory re-employment rights

were about to expire and that if she did not exercise those rights she

would be removed from the federal service.