03a00072
03-27-2001
Emmanuel G. Del Rosario, Complainant, v. Steven R. Cohen, Acting Director, Office of Personnel Management, Agency.
Emmanuel G. Del Rosario v. Office of Personnel Management
03A00072
03-27-01
.
Emmanuel G. Del Rosario,
Complainant,
v.
Steven R. Cohen,
Acting Director,
Office of Personnel Management,
Agency.
Petition No. 03A00072
MSPB No. SE-0831-99-0350-I-1
DENIAL OF CONSIDERATION
On June 12, 2000, Emmanuel G. Del Rosario (hereinafter the petitioner),
initiated a petition to the Equal Employment Opportunity Commission
(Commission) for review of the final order of the Merit Systems Protection
Board (MSPB) concerning his case.
On September 13, 1999, petitioner filed an appeal with the MSPB from the
agency's July 9, 1999 decision that he was not entitled to disability
retirement benefits under the Civil Service Retirement System. Because
petitioner did not request a hearing, the MSPB Administrative Judge (AJ)
issued an initial decision, based solely upon the written submissions
of the parties, that upheld the agency's action. Petitioner requested
a review of the initial decision, but the MSPB denied the request on
the grounds that it failed to meet the statutory criteria. Neither the
AJ nor the Board made any determinations regarding discrimination with
respect to the agency. Petitioner filed this petition for review with
the Commission.
After reviewing the record in this case, we find no persuasive evidence
that petitioner, at the time he filed his appeal with the MSPB, raised a
claim of discrimination.<1> EEOC Regulations provide that the Commission
has jurisdiction over claims of discrimination raised in connection
with an action appealable to the MSPB. See 29 C.F.R. � 1614.302.
Because the MSPB did not address any matters within the Commission's
jurisdiction, the Commission has no jurisdiction to review petitioner's
case. Consequently, the Commission denies the petition for review.
Accordingly, the Commission denies consideration of the petition in this
case.
STATEMENT OF PETITIONER'S RIGHTS
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
___03-27-01___________________________
Date
1We note in this regard that, on the appeal form, petitioner was asked
to indicate if he thought he was discriminated against and to explain
why he thought so. Petitioner never stated that he thought he was being
discriminated against. He only speculated that the action �may� have
been based on his race or color. In his subsequent October 18, 1999
brief, petitioner did not even raise the issue of discrimination. In his
petitions for review by the full MSPB and the Commission, petitioner
raised race, color, religion, sex, and national origin discrimination.