0320080001
03-13-2008
Hattie Dickerson, Petitioner, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Hattie Dickerson,
Petitioner,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320080001
MSPB No. AT-0752-07-0399-I-1
DECISION
On September 25, 2007, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC) asking for review of a Final
Order issued by the Merit Systems Protection Board (MSPB) on August 30,
2007, 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.
Petitioner alleged that she was discriminated against based on her
disability (severe allergic reactions to chemicals) and reprisal for
prior protected EEO activity when:
1. she was placed on a non-pay status from November 7, 2005, onward
(constructive suspension),
2. she was removed effective January 9, 2007, for medical inability to
perform the duties of her position, and
3. she was denied restoration and/or reinstatement.
Regarding claim 1, the initial decision found, in essence, that petitioner
stopped coming to work because of an allergic condition (she was later
removed for inability to come to work due to a medical condition, i.e.,
the record shows this referred to severe allergic condition). Based on
this, the initial decision found petitioner's refusal to come to work
was voluntary, and hence the MSPB had no jurisdiction over claim 1.
In upholding claim 2, the MSPB found that the agency properly removed
petitioner for medical inability to perform the duties of her position,
and that she did not prove reprisal or disability discrimination,
including failure to reasonably accommodate her disability. Regarding
claim 3, the initial decision found that petitioner was not entitled
to restoration because the Office of Workers' Compensation Programs
(OWCP) did not accept her claim, and she did not assert that she was
partially or fully recovered. Regarding reinstatement, the initial
decision found no violation of reemployment priority list (RPL) rights
because petitioner did not show she was affected by a pending or effected
reduction-in-employment (RIF) action. Accordingly, the initial decision
found the MSPB had no jurisdiction over claim 3.
Petitioner filed a petition for review of the initial decision with
the MSPB, which was denied in a final order. Petitioner then filed
a petition for review with the EEOC. On review, petitioner conceded
that she filed an appeal with the United States Court of Appeals for
the Federal Circuit, but indicated she only did so regarding the MSPB's
partial dismissal for lack of jurisdiction. She argued, among other
things, that she was improperly removed.
Thereafter, the Federal Circuit issued a decision on petitioner's
appeal. The decision recounted that petitioner appealed the MSPB's
decision affirming her removal for medical inability to perform her
position and dismissing her claims for constructive suspension and
restoration/reinstatement. The Court affirmed on the merits the
MSPB's decision upholding the removal. It found that petitioner's
other contentions, including her claim of procedural error during the
hearing and bias of the MSPB Administrative Judge (AJ), to be without
merit. Dickerson v. Department of Veterans Affairs, 2008 WL 591038
(C.A. Fed. March 5, 2008).
Given the ruling of the Federal Circuit, we find that petitioner did
appeal the merits of her removal action to the Court. Accordingly,
she abandoned the administrative process regarding claim 2, the removal
matter.
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
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). The MSPB did not make determinations
on discrimination regarding claims 1 and 3. Claim 1, however, is
interconnected with claim 2, and the MSPB's rulings thereon largely
impacted its rulings on claim 1. Given this, and the appeal of claim
2 to the Federal Circuit, we decline to continue processing claim 1 in
the administrative process. Further, on petition, petitioner does not
submit argument against the MSPB's rulings on claim 3, which grew out
of its interpretations of civil service law. Given this, we decline to
continue the processing of claim 3 in the EEO process.
Accordingly, petitioner's petition is dismissed.
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
March 13, 2008
__________________
Date
2
0320080001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080001