0320150032
04-01-2015
Petitioner, v. Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency.
Petitioner,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.
Petition No. 0320150032
MSPB No. PH-1221-14-0539-W-1
DECISION
On February 23, 2015, 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. PH-1221-14-0539-W-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 Petitioner was employed by the Agency as a Financial Management Specialist (GS-12). On September 13, 2013, the Agency proposed to remove Petitioner for poor performance. Petitioner then retired, effective October 31, 2013, citing her mistreatment by the Agency as the reason for her retirement. Subsequently, Petitioner, among other matters, raised a claim of constructive removal to the MSPB. She maintained that she was being treated for pancreatic cancer, and her supervisor's harassment interfered with her recovery. Specifically, Petitioner alleged that her supervisor(s): (1) tried to embarrass her about her 40-50 pound (cancer-caused) weight loss; (2) laughed at her behind her back; (3) "got in her face" and yelled at her; (4) told her she can't threaten her supervisor with threats of an EEO complaint; (5) cancelled her telework; (6) charged her AWOL and cancelled her leave; (6) forced her to work more quickly than others; (7) placed her on a PIP; (8) proposed her removal; and (9) subjected her work to unnecessary scrutiny, belittled her work, and harassed her about the quality of her work. An MSPB Administrative Judge dismissed Petitioner's appeal for lack of jurisdiction in an initial decision dated August 21, 2014. Petitioner filed a petition seeking a review by the full Board; however, on January 20, 2015, the full Board issued a final decision upholding the initial decision in pertinent part. The instant petition followed.
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 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. 0320150032 is hereby administratively closed. MSPB Docket No. PH-1221-14-0539-W-1 is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process the allegations of discrimination contained in MSPB Docket No. PH-1221-14-0539-W-1 pursuant to 29 C.F.R. � 1614.105 et seq. The Agency 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 regarding her constructive removal claim or first raised this matter with the MSPB shall be deemed the date of initial contact with the EEO counselor. A copy of the notification shall be provided to the Compliance Officer listed below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__4/1/15________________
Date
2
0320150032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320150032