03a60026
12-16-2005
Pamela G. Marshall, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Pamela G. Marshall v. Department of the Army
03A60026
December 16, 2005
.
Pamela G. Marshall,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 03A60026
MSPB No. DC-0752-05-0221-I-1
DECISION
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.
Petitioner, a Secretary at the agency's Human Resources Command in
Alexandria, Virginia, alleged that she was discriminated against on
the basis of sex (female) when she was subjected to sexual harassment
and removed from her position. Specifically petitioner alleged her
supervisor used inappropriate language around her. The record shows
that petitioner was removed from her position for being absent without
leave on several occasions. In addition, the record shows that she had
previously been disciplined for attendance problems. When petitioner
withdrew her request for a hearing, the MSPB Administrative Judge (AJ)
issued a decision finding that petitioner was unable to support her claims
of sexual harassment or sex discrimination. Petitioner sought review
by the full Board, which denied her petition. Petitioner then filed her
petition for review with the Commission, for the first time arguing that
she was discriminated against based on her sexual orientation and her
status as a parent. The Commission notes that it has no jurisdiction
over discrimination based on sexual orientation. Petitioner's status
as a parent apparently is related to her Family Medical Leave Act claims
over which the Commission also has no jurisdiction.
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
December 16, 2005
__________________
Date