0320140003
06-04-2014
Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Petition No. 0320140003
MSPB No. CH075212048211
DECISION
On September 24, 2013, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for a review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination. 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 worked as a Computer Specialist, GS-0334-12, with the Risk Management Agency, Fiscal Operations and Systems Division, in Kansas City, Missouri. The Office of Personnel Management approved her disability retirement application effective February 23, 2002. On March 3, 2011, she contacted an Equal Employment Opportunity (EEO) counselor, claiming the Agency discriminated against her on the bases of her race and disability by denying her request for reasonable accommodation in late 2001 or early 2002 and forcing her to retire. She filed a formal mixed case complaint of discrimination on July 5, 2011, which the Agency accepted and referred for investigation. On April 5, 2012, the Agency issued a final decision dismissing her complaint as untimely. Petitioner filed an appeal with the MSPB on May 1, 2012.
On September 28, 2012, the MSPB issued an initial decision that dismissed Petitioner's appeal for lack of jurisdiction over her appeal as well as her claims of prohibited personnel actions and prohibited discrimination. Petitioner filed a petition seeking a review by the full Board of the initial decision. On August 22, 2013, the full Board issued a final decision denying the petition for review and affirming the initial decision by the Administrative Judge.
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 in this case, 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. Thus, 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, Petition No. 0320140003 is hereby administratively closed, and the matter 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) that the Agency, if it has not already done so, is required to process her allegations of discrimination pursuant to 29 C.F.R. � 1614.108(f). Within 30 calendar days of its receipt of this decision, the Agency shall notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on her discrimination claims pursuant to 29 C.F.R. � 1614.110.
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
____6/4/14______________
Date
2
0320140003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140003