0320100039
10-05-2010
Carol Mulhern, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carol Mulhern,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320100039
MSPB Nos. PH-1221-05-0560-W-1 & PH-0752-06-0038-I-1
DECISION
On September 12, 2006, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) dated August 29, 2006, 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.1
BACKGROUND
Petitioner filed separate appeals with the MSPB challenging (1) a December 6, 2004, decision to suspend her for 30 days with pay and benefits, and (2) a December 7, 2005, decision to demote her from Supervisory Medical Support Assistant, GS-7, to Program Support Assistant, GS-6.
On what was originally the appeal from the suspension, the only matter before the Board was the individual-right-of-action (IRA) whistleblower reprisal claim. See Initial Decision in the instant case; final order in Talley v. Department of Veterans Affairs, MSPB No. PH-0752-05-0157-I-1 (August 5, 2005) (Petitioner's former name was Talley. In this final order, the Board referred only the whistleblowing claim to its Northeastern Regional Office for docketing and adjudication). The new docket number was PH-1221-05-0560-W-1, which was later joined with the appeal on the demotion.
In demoting Petitioner, the Agency charged her with violating the Privacy Act by making disclosures of veteran patient names and partial social security numbers in August 2005. Petitioner acknowledged the disclosures, but contended they were justified, the veterans indicated that they did not mind, and she believed the information was properly disclosed in confidence.
In its initial decision, the MSPB dismissed the PH-1221-05-0560-W-1 whistleblowing claim for lack of jurisdiction. It sustained the charge supporting the demotion and upheld the demotion. The MSPB found that the demotion was not, in relevant part, in reprisal for protected Equal Employment Opportunity (EEO) activity. In a Final Order, the Board denied Petitioner's petition for review.
CONTENTIONS ON PETITION
Petitioner observes that the MSPB dismissed part of her case for lack of jurisdiction, generally argues that her demotion was without merit, and writes that she believed the disclosure was within an exemption to the Privacy Act. In opposition to the petition, the Agency argues that the MSPB's decision should be upheld.
ANALYSIS AND FINDINGS
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. In appeal PH-1221-05-0560-W-1, the MSPB made no determinations of allegations of discrimination or reprisal for EEO activity. Accordingly, we lack jurisdiction over appeal PH-1221-05-0560-W-1.
On the demotion, the Commission must determine whether the decision of the MSPB with respect to the allegation of reprisal for EEO activity 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, it is the decision of the Commission to concur with the final decision of the MSPB finding no discrimination on the demotion. The MSPB sustained the charges supporting the demotion, and the record does not show that Petitioner was disparately treated or otherwise proved retaliation. The Commission finds that the MSPB's decision finding that the demotion was not in reprisal for prior EEO activity 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 (W0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 5, 2010
__________________
Date
1 The Commission initially inadvertently did not docket the petition. After Petitioner asked about the status of her petition by letter received on April 29, 2010, the Commission looked into the matter and thereafter docketed the petition.
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0320100039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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