0320080048
09-09-2008
Rebecca Trussell, Petitioner, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Rebecca Trussell,
Petitioner,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Petition No. 0320080048
MSPB No. DA0831070497I1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a decision issued by the Merit Systems
Protection Board (MSPB) concerning her claim of discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner alleged that she was discriminated against on the bases
of disability and age when the agency advised her that she was "not
entitled to receive the Alternative Form of Annuity due to the death of
[her husband]." Briefly, petitioner's husband had signed a Statutory
Durable Power of Attorney (SDPA) in 2003. In 2006 he became sick and
suffered cardiac arrest on March 20, 2006. On March 24, 2006, petitioner
signed a retirement application using the SDPA, electing an alternative
form of annuity (AFA). The husband died on March 29, 2006. Thereafter the
agency initially accepted the retirement application but then informed
petitioner that it did not accept power of attorney signatures for
immediate retirement or AFA payments. Petitioner appealed the agency's
determination.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued
an initial decision finding that petitioner was legally entitled to sign
the retirement application and AFA election on her husband's behalf. The
AJ found that petitioner failed to support her claims of disability and
age discrimination, and that she failed to provide statistical evidence
to support her disparate impact claim. Petitioner did not seek review by
the full Board so the initial decision became the final Board decision.1
Petitioner then filed the instant petition.
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, 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 (W0408)
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 (Z0408)
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 9, 2008
__________________
Date
1 Information in the MSPB file indicates that on June 3, 2008, the
parties entered into a settlement agreement regarding attorney's fees.
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0320080048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080048