Clay W.,1 Petitioner,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Oct 10, 2019

Petition No. 2020000203 (E.E.O.C. Oct. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Clay W.,1
Petitioner,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Petition No. 2020000203

MSPB No. NY-0752-19-0167-I-1

DECISION

On October 8, 2019, Petitioner filed a petition with the Equal Employment Opportunity
Commission seeking review of a Final Order issued by the Merit Systems Protection Board
(MSPB) regarding MSPB No. NY-0752-19-0167-I-1. For the reasons that follow, we DENY
consideration of Petitioner’s petition, and REMAND this matter to the Agency for further
processing.
BACKGROUND

In pertinent part, the record indicates that, on July 30, 2019, an MSPB Administrative Judge issued
an initial decision that dismissed Petitioner’s appeal on the grounds that the MSPB lacked
jurisdiction over the matter, and that Petitioner’s appeal was filed in an untimely manner.
Petitioner’s appeal concerned his removal during his probationary period. The decision became
final on September 3, 2019.

ANALYSIS AND FINDINGS

EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and
complaints on which the MSPB has issued a decision that makes determinations on allegations of
discrimination. 29 C.F.R. § 1614.303 et seq. However, when the MSPB, as it did here, denies
jurisdiction, the Commission has held that there is little point in continuing to view the matter as

1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.
2020000203

2
a “mixed case” as defined by 29 C.F.R. § 1614.302(a), because the MSPB did not address any
matters within the Commission’s jurisdiction. Therefore, the Commission finds that it has no
jurisdiction to review Petitioner’s petition. This matter will be considered a “non-mixed” case and
processed accordingly. See generally Schmitt v. Dept. of Transportation, EEOC Appeal No.
01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October
12, 1990); 29 C.F.R. § 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner’s
request for review is DENIED and Petition No. 2020000203 is hereby administratively closed.
MSPB No. NY-0752-19-0167-I-1 is referred to the Agency for further processing as outlined
below. 2

ORDER

Petitioner is advised by operation of 29 C.F.R. § 1614.302(b) that the Agency, if it has not already
done so, is required to process his allegations of discrimination. Because Petitioner filed a mixed
case appeal with the MSPB, the Agency, pursuant to 29 C.F.R. § 1614.105 et seq., shall notify
Petitioner of the right to contact an EEO counselor within forty-five (45) days of receipt of this
decision, and to file an EEO complaint, subject to 29 C.F.R § 1614.107. The date on which the
Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the
EEO counselor.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.

If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the

2 The Commission also has no jurisdiction over the MSPB’s determination that Petitioner’s appeal
was filed in an untimely manner. We take no position on this issue at this time.
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complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 10, 2019
Date