0320150063
10-15-2015
James S.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense, (Missile Defense Agency) Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
James S.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense,
(Missile Defense Agency)
Agency.
Petition No. 0320150063
MSPB No. DC-0752-14-1033-I-1
DENIAL OF CONSIDERATION
On May 26, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of an April 30, 2015 final decision issued by the
Merit Systems Protection Board (MSPB). For the reasons that follow, we deny consideration of Petitioner's petition.
Petitioner filed an appeal to the MSPB regarding his indefinite suspension, effective June 15, 2009, and his removal, effective June 29, 2010. The Agency filed a motion to dismiss the appeal on the basis of res judicata, asserting that Petitioner had previously appealed both his indefinite suspension and his removal to the MSPB and the U.S. Court of Appeals for the Federal Circuit, and final decisions had been issued in both appeals in favor of the Agency.
With respect to Petitioner's indefinite suspension, the Agency submitted copies of decisions showing that Petitioner had previously appealed the action to the MSPB, and the MSPB affirmed his indefinite suspension. In addition, the Agency included a copy of the Federal Circuit's decision also affirming the indefinite suspension action. Similarly, with respect to Petitioner's removal, the Agency submitted copies of decisions showing that Petitioner had previously appealed the action to the MSPB and the MSPB affirmed his removal. The Agency also included a copy of a Federal Circuit's decision that, among other things, affirmed the MSPB's final order with respect to Petitioner's removal.
Without holding a hearing, an MSPB Administrative Judge issued an initial decision that, for the reasons indicated above, dismissed Petitioner's appeal as barred by res judicata. Petitioner filed an appeal to the Full Board. On April 30, 2015, the Full Board issued a decision that found the initial decision was correctly decided by the Administrative Judge and that Petitioner's appeal was barred. This appeal to the Commission followed.
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. Here, the MSPB did not make a determination on the merits on any allegation of discrimination, but rather declined to address Petitioner's allegations of race and reprisal discrimination because his appeal was barred on the grounds of res judicata. Because the MSPB did not address any matters within the Commission's purview, the Commission has no jurisdiction to review Petitioner's case. Consequently, the Commission will DENY consideration of the petition for review.
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
__10/15/15________________
Date
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.
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