Ivelisse S.,1 Petitioner,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 28, 2019

2019002023 (E.E.O.C. Mar. 28, 2019)

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

Ivelisse S.,1
Petitioner,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Petition No. 2019002023

MSPB No. SF-1221-18-0667-W-1

DECISION

Petitioner filed an appeal with the Merit Systems Protection Board (MSPB) asserting that the
Agency retaliated against her for engaging in protected whistleblowing activity which resulted in
her resigning from her position, effective July 20, 2018. On February 27, 2019, an MSPB
Administrative Judge dismissed Petitioner’s appeal as being moot. Petitioner filed a petition with
the Equal Employment Opportunity Commission (Commission) seeking review of the final
decision of the MSPB.

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. Here, the MSPB dismissed Petitioner’s appeal as
being moot. The Commission has no jurisdiction over these types of procedural determinations by
the MSPB. Because the MSPB’s decision did not address any matters within the Commission’s
jurisdiction, the Commission has no jurisdiction to review Petitioner’s case.2

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.
2 Moreover, we note that Petitioner is alleging violations of the Whistleblower Protection Act. The
Commission has previously held that whistleblower activities are generally outside the purview of
the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request
No. 05880911 (February 13, 1989).
2019002023

2
Consequently, the Commission will DENY consideration of the petition for review.3

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.

3 Contrary to Petitioner’s assertion, through her representative, the MSPB Administrative Judge
did not dismiss her appeal for lack of jurisdiction. On the contrary, the Administrative Judge
specifically found that the MSPB had jurisdiction in this matter but that due to other circumstances
there was no longer any relief Petitioner could obtain even if she were to prevail before the Board
and therefore her appeal was now moot. Consequently, because we distinguish this situation from
one where the MSPB dismisses an appeal for lack of jurisdiction, we find that 29 C.F.R.
§ 1614.302(b) does not apply here, and the Agency will not be directed to take further action.

2019002023

3
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

March 28, 2019
Date