03A20032
04-10-2002
Georgia Smith, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Georgia Smith v. Department of Veterans Affairs
03A20032
04-10-02
.
Georgia Smith,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A20032
MSPB No. CH-0752-00-0292-I-1
DECISION
On January 29, 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 Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. Petitioner, a Licensed
Practical Nurse at the agency's Louis Stokes Cleveland DVA Medical Center,
alleged that she was discriminated against on the basis of reprisal
(prior Title VII activity) when she was removed from employment effective
January 14, 2000. On February 2, 2000, petitioner filed a mixed case
appeal with the MSPB. After a hearing, the MSPB Administrative Judge
sustained the agency's action, finding no discrimination. The Board
denied petitioner's petition for review.<1>
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).
Assuming for the sake of argument that petitioner has established
a prima facie case of reprisal discrimination, see, e.g., Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass), affirmed, 545 F.2d 222 (1st Cir. 1976), the agency
met its burden to explain its action. See Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The agency explained that
petitioner failed to follow instructions to return to duty, and then left
work without permission. Petitioner failed to adduce evidence that the
agency's action more likely than not were instead motivated by retaliatory
animus. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
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
_04-10-02_________________
Date
1Because the initial decision had not afforded petitioner the correct
appeal rights, in the above-referenced final order the Board reopened
the case on its own motion to modify the initial decision only with
reference to petitioner's appeal rights.