03a50046
07-19-2005
Roberta J. Sellers, Petitioner, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Roberta J. Sellers v. Department of Agriculture
03A50046
July 19, 2005
.
Roberta J. Sellers,
Petitioner,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Petition No. 03A50046
MSPB No. SF-0752-04-0579-I-1
DECISION
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.
Petitioner, a Legal Instruments Examiner, GS-6 alleged that she
was discriminated against on the bases of sex (female), disability
(depression, bi-polar disorder)<1>, and reprisal when she was removed
from her position. The record reflects petitioner occupied one of
thirty-eight positions that were declared surplus due to budget cutbacks
by the agency. She was given a directed reassignment which she refused,
and as a consequence she was removed form her position. Petitioner filed
an EEO complaint,<2> and the agency issued a final agency decision finding
no discrimination. Petitioner filed an appeal with the Commission, which
was administratively closed. Thereafter petitioner filed an appeal with
the MSPB. Petitioner waived her right to a hearing and an AJ issued an
initial decision finding no discrimination or reprisal. Petitioner did
not seek review by the full Board so the initial decision became the
Board's final decision. Petitioner then filed the instant petition with
the Commission.<3>
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. 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
July 19, 2005
__________________
Date
1The Commission assumes, without finding, that petitioner is an individual
with a disability. See 29 C.F.R. � 1630.2(g)(1).
2Petitioner filed three discrimination complaints when (1) she was
placed on the surplus list in March 1996 and non-selected for positions
between January and May 1996, (2) when she was subjected to a hostile work
environment between January 1996 and March 1997 and was given a directed
reassignment, and (3) when she was removed from her position. The agency
issued its final agency decision on the three complaints giving petitioner
appeal rights to the MSPB, on April 30, 2004. Petitioner filed an appeal
with the Commission, but because the case involved a removal action,
it was administratively closed. At a prehearing conference, the MSPB AJ
explained that he would not entertain the issues of non-selections and
hostile work environment.
3In her petition to the Commission, petitioner indicated that some of the
claims in the complaints addressed by the FAD were not addressed. Those
claims will be addressed in EEOC Appeal No. 01A54851.