03A20072
09-06-2002
Betty Jane Rogers, Petitioner, v. Kay Coles James, Director, Office of Personnel Management, Agency.
Betty Jane Rogers v. Office of Personnel Management
03A20072
September 6, 2002
.
Betty Jane Rogers,
Petitioner,
v.
Kay Coles James,
Director,
Office of Personnel Management,
Agency.
Petition No. 03A20072
MSPB No. AT-831E-02-0042-I-I
DECISION
On February 8, 2002, 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 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 is the widow of a former employee of
the Department of the Air Force (USAF). Her husband was employed as a
Supervisory Systems Analyst until his resignation on December 12, 1988.
The resignations was precipitated by petitioner's husband's failure
to maintain his military status as required by his civilian position.
After the resignation, petitioner's husband did not apply for retirement
or disability benefits. Petitioner's husband died on October 12, 2000
at the age of 57.
Petitioner then applied for annuity benefits under the Civil Service
Retirement System but was deemed ineligible to receive such benefits.
Petitioner appealed the denial to the defendant agency herein. The agency
issued its reconsideration decision on September 14, 2001, affirming that
petitioner was, in fact, ineligible to receive the annuity benefits.
Petitioner appealed that finding to the Merit Systems Protection Board
(MSPB), and on January 15, 2002, a MSPB Administrative Judge issued
a decision affirming the holding of the agency. Petitioner now seeks
review of the MSPB AJ's decision from this Commission.
In his decision, the MSPB AJ concluded that petitioner does not meet
the statutory requirements for a survivor annuity and is not eligible
for survivor annuity based on her husband's death. The AJ based this
conclusion on the fact that neither petitioner's husband nor the USAF
applied for retirement benefits on behalf of petitioner's husband, and
that petitioner's husband died at age 57 which means he did not meet
the deferred annuity age requirement of 62.
In her request for review to this Commission, petitioner makes two
arguments. She first argues that her husband was the victim of unlawful
discrimination suffered at the hands of his base commander which resulted
in her husband's forced resignation. Petitioner also argues that the
statutory age requirements preventing her from receiving a survivor
annuity is a form of age discrimination.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals 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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not 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. Although we concur with the MSPB
AJ's statement that petitioner's circumstances are entirely sympathetic,
we can offer no relief under the laws enforced by this Commission.
Further, and unfortunately, any claims of discrimination or harassment
suffered by petitioner's husband prior to his resignation from the USAF
would be considered untimely raised herein. Thus, 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
September 6, 2002
__________________
Date