Petitioner, )

Equal Employment Opportunity CommissionMay 24, 2000
03990147 (E.E.O.C. May. 24, 2000)

03990147

05-24-2000

Petitioner, )


Edda I. Pettye v. Office of Personnel Management

03990147

May 24, 2000

Edda I. Pettye, )

Petitioner, )

) Appeal No. 03990147

v. ) MSPB No. SF-831E-98-0572-I-1

)

Janice R. Lachance, )

Director, )

Office of Personnel Management, )

Agency. )

)

DENIAL OF CONSIDERATION

On September 13, 1999, Edda I. Pettye (hereinafter referred to

as petitioner) timely filed a petition with the Equal Employment

Opportunity Commission (the Commission) for review of the Opinion and

Order of the Merit Systems Protection Board (MSPB) issued August 13,

1999, concerning an allegation of discrimination in violation of Section

501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

Petitioner filed an appeal with the MSPB regarding the agency's denial

of petitioner's request for disability retirement. Petitioner asserted

that the agency erroneously denied her request for disability retirement.

Petitioner further alleged that the Department of the Navy, where she was

employed, discriminated against her based on her disability regarding a

reduction in force (RIF) action, career placement, the displaced employee

program, and the preemployment priority list. Petitioner argues that the

Department of the Navy's alleged misconduct placed her in a position which

resulted in the denied of disability retirement by the agency. The MSPB

Administrative Judge (AJ) issued an Initial Decision dated November 17,

1998, affirming the agency's disability retirement determination without

addressing petitioner's allegation of discrimination.

Petitioner requested that the Board review the MSPB AJ's Initial Decision.

The Board denied the petition but reviewed petitioner's appeal on its

own merit. In its Opinion and Order, the Board held that petitioner

failed to show any factual or legal error in the initial decision and

therefore, failed to establish a basis for granting the petition for

review.<1> It concluded that the agency made an appropriate decision

regarding petitioner's request for disability retirement. Further,

the Board determined that petitioner clearly indicated a desire to

appeal her RIF separation and the other alleged violations of her

re-employment rights against the Department of the Navy. Therefore,

the Board forwarded the petitioner's file to be docketed as a new appeal

to be served against the Department of the Navy.<2> This petition for

review to the Commission followed.

The Commission notes that petitioner appealed to the MSPB the decision

of the agency denying her application for disability retirement. On the

appeal form to MSPB, the petitioner stated, "I was discriminated because

of my disability by the Department of the Navy. . . . I further believe

[the agency]'s final decision is erroneous and needs to be overruled.

It does not give full and fair consideration to the medical evidence which

met the eligibility criteria." Further, in her petition for review to

the Board, petitioner argues that the evidence she provided the MSPB AJ

demonstrated how she was treated differently because of her disability

and listed events that occurred during her employment at the Department

of the Navy.

Upon review of the record, it is clear that the Initial Decision and

the Opinion and Order from the Board concerned whether petitioner's

application for disability retirement should have been approved or denied.

In the initial MSPB decision, the MSPB AJ did not provide petitioner

with notice of any right to petition the Commission for a review of the

decision. The Board's Opinion and Order also did not provide petitioner

with notice to petition the Commission for review. Neither the MSPB

AJ nor the Board made any determinations regarding discrimination with

respect to the agency. Further, petitioner's petition for review of the

Board's decision reargues the merits of her application for disability

retirement rather than the merits of her discrimination allegation against

the agency. The Commission only has jurisdiction over allegations of

discrimination raised in connection with an action appealable to the MSPB.

See 29 C.F.R. � 1614.302. Because the MSPB did not address any matters

within the Commission's jurisdiction, the Commission has no jurisdiction

to review petitioner's case. Consequently, the Commission denies the

petition for review.

Accordingly, the Commission denies consideration of the petition in this

case and EEOC Petition No. 03990147 is hereby administratively closed.

STATEMENT OF PETITIONERS' RIGHTS

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

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

May 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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, petitioner's representative

(if applicable), the agency, and the MSPB on:

Date

1In its decision, the Board determined that petitioner failed to show that

either her preexisting medical condition deteriorated prior to her RIF

separation or that such condition was sufficiently severe that she was

disabled for useful and efficient service in her position. In its

determination, the Board took into consideration the Social Security

Administration's decision to grant to petitioner's disability benefits.

2Commission makes no determination regarding petitioner's appeal regarding

her allegations of discrimination against the Department of the Navy.