Marianv.Sowa, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 30, 2002
03A20089 (E.E.O.C. Sep. 30, 2002)

03A20089

09-30-2002

Marian V. Sowa, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Marian V. Sowa v. Department of Veterans Affairs

03A20089

September 30, 2002

.

Marian V. Sowa,

Petitioner,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 03A20089

MSPB No. SF-0752-0396-I-1

DECISION

On August 16, 2001, 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 the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. Petitioner, a Staff Neurologist at an agency's Long Beach,

California Medical Center facility, alleged that she was discriminated

against on the bases of national origin (Polish), sex (female), and age

(42 at the relevant time), and subjected to retaliation for prior EEO

activity (under Title VII and the ADEA) when she was terminated from

her position as part of a Reduction-In-Force (RIF) on July 13, 1997.

Petitioner filed a mixed case complaint with the agency alleging that her

termination was discriminatory. When the agency failed to issue a final

decision on her complaint within 120 days of the filing date, complainant

filed an appeal with the MSPB. See 29 C.F.R. � 1614.302(d)(2).

On June 18, 1999, after a hearing, the Administrative Judge (AJ) found

that the agency failed to comply with RIF regulations when it separated

complainant from employment and ordered that the separation be reversed.

The AJ further found that complainant failed to establish that the

termination was discriminatory or retaliatory. The agency petitioned the

Board for review and complainant filed a cross-petition on the issue

of discrimination. On July 18, 2002, the Board denied the petitions

for review.<1>

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a final decision that

makes determinations on allegations of discrimination. 29 C.F.R. �

1614.303 et seq. In the case at hand, the record reveals that the

agency's request for a stay of enforcement of the Board's final decision

is currently pending before the Board. Moreover, in her petition for

review to this Commission, complainant notes that she has filed a �request

for reconsideration� to the Board, asking that it amend its final order

to explicitly recite its disposition of her cross-petition for review.

In these circumstances, while at least two matters related to this case

are currently pending before the MSPB, we find it improper to exercise

jurisdiction over this petition. The Commission only has jurisdiction

to review the final decision of the Board and not a decision that is

pending review by the Board. See 29 C.F.R. � 1614.303(a). Accordingly,

the petition for review is denied without prejudice.<2>

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

September 30, 2002

Date

1 The final order of the Board did not

explicitly discuss complainant's cross-petition for review of the AJ's

finding of no discrimination. It did, however, deny the petitions for

review and state that the AJ's initial decision was final.

2 We note that petitioner may file a new petition for review when the

matters related to this case which are currently pending before the MSPB

are resolved.