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.