03a50012
03-18-2005
Levida Hardy, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Levida Hardy v. Department of the Army
03A50012
March 18, 2005
.
Levida Hardy,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 03A50012
MSPB No. SE-0752-04-0105-I-1
DECISION
On December 13, 2004, the 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. The petitioner was a Budget Officer-GS-13
with the Army Corps of Engineers at the agency's facility in Honolulu.
The petitioner alleged that the agency discriminated against her on the
bases of her race (African-American), sex (female), disability (Major
Depression and Somatization), and reprisal for prior Title VII activity
when the agency removed her from Federal Service.
On January 9, 2003, the petitioner filed a mixed case appeal with
the MSPB. After a hearing, the Administrative Judge (AJ) found that the
petitioner had not established that her race, sex or reprisal were factors
in the agency's removal decision. With regard to the disability claim,
the AJ found that, to the extent that the agency was made aware of the
petitioner's medical condition,<1> the agency provided the petitioner
with an extension of her tour of duty, an extension of the time limits
to exercise her re-employment right, granted her extensive leave and
permitted her to work
part-time.<2> The petitioner sought review by the full Board, but the
Board denied her petition for review.
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).
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
March 18, 2005
__________________
Date
1 For the purpose of analysis, we assume without finding that the
petitioner is an individual with a disability. See 29 C.F.R. �
1630.2(g)(1).
2 The petitioner had been warned that her statutory re-employment rights
were about to expire and that if she did not exercise those rights she
would be removed from the federal service.