03A20045
04-15-2002
Lourdes B. Sherwood, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lourdes B. Sherwood v. Department of Veterans Affairs
03A20045
April 15, 2002
.
Lourdes B. Sherwood,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 03A20045
MSPB No. SF-3443-02-0035-I-1
DECISION
Petitioner, a Civilian Pay Technician, GS-5, for the Veterans Affairs
Medical Center in San Diego, California, filed a petition with this
Commission regarding the Merit Systems Protection Board's (MSPB) decision
on her mixed case appeal. Petitioner alleges that the agency unfairly
denied her leave to which she was entitled under the Family Medical Leave
Act (�FMLA�) and that her �college degree and work experience [were]
being ignored for promotion.� She alleged that these actions were
motivated by unlawful animus against her race (Asian), national origin
(Filipino), and disability (disabled veteran and spouse with a 100%
service connected disability) in violation of Title VII of the Civil
Rights Act of 1964, 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.<1> In its Final Order, the MSPB dismissed
the appeal for jurisdictional reasons and did not reach the merits of
petitioner's claim of discrimination.
The Commission has no jurisdiction to review petitioner's case because
the MSPB dismissed the appeal for jurisdictional reasons and did not
address any matters within the Commission's jurisdiction. See Sonnier
v. Department of the Air Force, EEOC Petition No 03A00024 (January
21, 2000). When the MSPB denies jurisdiction in such matters, the
Commission has held that there is little point in continuing to view
the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a).
Thus, the case is now considered a"non-mixed matter" and shall be
processed accordingly. See 29 C.F.R. � 1614.302(b); Kimble v. Department
of the Army, EEOC Petition No. 03980050 (April 16, 1998).
NOTICE TO PARTIES
Petitioner has the right to contact an EEO counselor within forty-five
(45) days of receipt of this decision and to file an EEO complaint,
subject to 29 C.F.R. � 1614.107. The date on which petitioner filed
his appeal with the MSPB shall be deemed the date of initial contact
with the EEO counselor. 29 C.F.R. � 1614.302(b).
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
April 15, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, the Merit Systems Protection
Board, and the agency on:
__________________
Date
______________________________
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.