0320070107
09-13-2007
Mary C. Fenton, Petitioner, v. Michael O. Johanns, Secretary, Department of Agriculture, Agency.
Mary C. Fenton,
Petitioner,
v.
Michael O. Johanns,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320070107
MSPB No. DC-0752-07-0363-I-1
DECISION
On July 26, 2007, petitioner timely filed a petition with the Equal
Employment Opportunity Commission (EEOC or Commission) asking for review
of the initial decision which on July 20, 2007, became the final order
of 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 filed a mixed case complaint alleging that she was
discriminated against based on her sex (female), disability (left
upper extremity and reactive airway syndrome), and age (born in 1955)
when she was removed effective May 14, 2005 for medical inability to
perform the duties of her position. The agency issued a decision
finding that petitioner was not discriminated against as alleged.
Thereafter petitioner filed an appeal with the MSPB. Petitioner did
not attach with her appeal an associated MSPB form designed for making
claims of discrimination, but made reference that her case was mixed.
She made other references to the above bases of discrimination during
the processing of her appeal. The AJ's summary of the issues in the
pre-hearing conference did not mention any discrimination claims nor
indicate petitioner knowingly waived them. She was pro se during the
processing of her appeal at the MSPB.
Following a hearing, the MSPB issued an initial decision upholding the
charge that petitioner was medically unable to perform the duties of
her position and upholding the removal. In finding that the removal
was reasonable and promoted the efficiency of the service, the initial
decision, which later became final, approvingly cited testimony that
the agency made a comprehensive search for vacancies at the agency and
was unsuccessful in finding any other position for which petitioner was
qualified and could perform efficiently and safely. The decision did
not explicitly address any of petitioner's discrimination claims.
On petition, petitioner raises her discrimination claims.1 The agency
replies that at the hearing the MSPB in effect addressed petitioner's
discrimination claims and found no discrimination.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case complaints on which the MSPB has issued a decision that
makes determinations on allegations of discrimination.2 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, 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.3
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
September 13, 2007
__________________
Date
1 She also raises reprisal for EEO activity. Because petitioner did
not raise reprisal before the MSPB, we are without jurisdiction to
address reprisal. 29 C.F.R. � 1614.305(c).
2 Based on our review of the record, we find petitioner, who was pro
se, claimed during the MSPB appeal process in various ways that she was
discriminated against based on her sex, age and disabilities when she was
removed, and hence raised these affirmative defenses. Given that the
MSPB does not indicate anywhere that petitioner waived these defenses,
we agree with the agency's assessment that in effect the MSPB found no
discrimination. The MSPB's decision improperly failed to give petitioner
petition rights to the EEOC.
3 For purposes of analysis only, we assume without finding that petitioner
is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
??
??
??
??
2
0320070107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320070107