03A30001
05-07-2003
Laura A. Sabatini, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Laura A. Sabatini v. Department of Veterans Affairs
03A30001
May 7, 2003
.
Laura A. Sabatini,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A30001
MSPB No. CH-0752-01-0445-I-1
DECISION
On September 12, 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 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Petitioner, a Motor Vehicles Operator, WG-07,
at the agency's Medical Center in North Chicago, Illinois, alleged that
she was discriminated against on the bases of sex (female), disability
(adjustment disorder), and reprisal when:
(1) on June 1, 2000, she was ordered to return to her permanent position
of Motor Vehicle Operator after her detail to the position of Safety
Technician, which began on December 9, 1999, was terminated;
she was placed on forced leave and constructively suspended from June
5, 2000, through December 21, 2000, because her medical documentation
which stated that she was restricted from operating motor vehicles was
considered insufficient; and
on July 18, 2000, she was issued a letter of Proposed Removal after
it was determined that she was medically disqualified to perform the
essential function of her permanent position of Motor Vehicle Operator.
On May 14, 2001, petitioner filed a mixed case appeal with the MSPB.
See 29 C.F.R. � 1614.302 (a)(2). At the pre-hearing conference, the MSPB
Administrative Judge (AJ) ruled that a hearing would be held to address
only the issues of the alleged constructive suspension, and whether such
suspension constituted disability discrimination, and that he would not
address petitioner's claims relating to sex or reprisal discrimination.<1>
After a hearing, the AJ found that the agency's placement of petitioner
on forced leave during the period in question constituted constructive
suspension for which petitioner had been denied due process, and was
a violation of the Master Agreement between the petitioner's union and
the agency. The AJ ordered the agency to cancel the forced leave and to
retroactively restore petitioner to duty status during that period. The
AJ also ordered the agency to pay petitioner the appropriate amount of
back pay and benefits, with interest. However, the AJ found that the
constructive suspension did not constitute disability discrimination.
This decision became final on August 7, 2002, as no petition for review
was filed by petitioner.
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 on these standards and after
a thorough review of the record, including petitioner's contentions in
support of her petition, the Commission concurs with the MSPB's decision
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.
We note, however, that the agency is required to process, as a non-mixed
matter, the portions of petitioner's complaint that were not adjudicated
by the MSPB. See 29 C.F.R. � 1614.302(b). We advise petitioner that she
may seek counseling with respect to the un-adjudicated portions of her
complaint within fifteen (15) calendar days of the date this decision
becomes final. The date on which petitioner filed her appeal with the
MSPB shall be deemed to be the date of initial contact with the counselor.
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
May 7, 2003
__________________
Date
1We are unable to ascertain from the record the reasons for the AJ's
refusal to consider the bases of sex and reprisal discrimination in
regard to claim (2).