Betty Jane Rogers, Petitioner,v.Kay Coles James, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionSep 6, 2002
03A20072 (E.E.O.C. Sep. 6, 2002)

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