03a40115
07-26-2004
Frances B. Day v. Dept. Of Health and Human Services Petition No. 03A40115 July 26, 2004 . Frances B. Day, Petitioner, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Frances B. Day v. Dept. Of Health and Human Services
Petition No. 03A40115
July 26, 2004
.
Frances B. Day,
Petitioner,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 03A40115
MSPB No. SE-0752-03-0087�I-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC or Commission) asking for review of the Merit Systems
Protection Board's (MSPB) decision on her case dated March 24, 2004.
Petitioner was removed from her position of Medical Officer, GS-14 based
on charges of excessive unauthorized absences and failure to report
to duty as directed. Petitioner also raised a claim of constructive
suspension preceding her removal. The MSPB assumed jurisdiction over the
matter. On March 24, 2003, petitioner, who was represented by counsel,
entered into a settlement agreement with the agency. Thereafter the MSPB
AJ found that the agreement was freely entered into by the parties and
that they understood the terms. Because of the settlement agreement,
the AJ indicated that there was no longer any case or controversy to
be adjudicated and dismissed the appeal. Petitioner wrote a letter to
the full Board which treated the matter as a petition for review of the
initial decision. Petitioner argued that she was coerced into signing
the agreement and did not understand the ramifications of some of the
terms. Nonetheless, the Board denied the petition for review. Petitioner
was not given appeal rights to the Commission.
Petitioner filed the instant petition to the Commission, attaching a
copy of the Board's decision, but in effect complaining that her claims
of gender based discrimination were not addressed. The Commission notes
that a portion of the settlement agreement indicates petitioner agreed
to withdraw any and all cases and complaints dealing with her employment
that she had pending with the EEOC, MSPB, or any other forum. Further,
because the settlement agreement occurred before the MSPB, any concerns
over the compliance with its terms should be addressed to the MSPB,
not the Commission.
EEOC Regulations provide that the Commission 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 matter has
been settled before the MSPB, the MSPB did not address any matters within
the Commission's jurisdiction. Thus, the Commission has no jurisdiction
over the instant matter. Consequently, the Commission denies the petition
for review.
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 26, 2004
_________________
Date