0320150029
04-02-2015
Petitioner, v. John M. McHugh, Secretary, Department of the Army, Agency.
Petitioner,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Petition No. 0320150029
MSPB No. DC-0351-12-0347-B-1
DENIAL OF CONSIDERATION
On December 23, 2014, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of an April 17, 2014 final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, effective February 25, 2012, it separated him pursuant to a reduction in force. On October 24, 2013, an MSPB Administrative Judge (AJ) issued an initial decision dismissing Petitioner's appeal with prejudice for failure to prosecute.1 Petitioner filed a petition for review by the full Board. On April 17, 2014, the Board issued a final order denying Petitioner's petition and affirming the MSPB AJ's initial decision.
Petitioner then filed the instant petition. In his petition, Petitioner stated that he initially mailed the petition on May 12, 2014, but was sending it again because he had not received a response from the Commission.
EEOC Regulation 29 C.F.R. � 1614.303(c) provides, in pertinent part, that a petition must be filed with the Commission within 30 days of receipt of the final decision of the MSPB. A review of the Board's final order reveals that the MSPB properly advised Petitioner of the time limit. According to Petitioner, he received the MSPB final decision in April or May 2014. Therefore, in order to be considered timely, Petitioner had to file his petition by May or June 2014. Petitioner's petition is postmarked December 23, 2014. Although Petitioner stated that he initially mailed the petition on May 12, 2014, he presented no evidence of such a filing and the Commission's records do not reflect any filings before December 23, 2014. Petitioner has not offered sufficient justification for an extension of the applicable time limits for filing his petition.
Furthermore, we note that 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. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c). Here, because the MSPB procedurally dismissed Petitioner's appeal for failure to prosecute and did not make a determination on Petitioner's allegation of reprisal discrimination, the Commission has nothing to review. As the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's case.
Consequently, for the reasons cited above, 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 (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
___4/2/15_______________
Date
1 The MSPB AJ found that Petitioner failed to comply with multiple MSPB orders by not participating in a scheduled telephonic conference call, not filing a response to explain his affirmative defense, and not filing evidence and argument showing good cause why his appeal should not be dismissed.
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0320150029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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