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.