[Redacted], Darell C., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 18, 2021

Petition No. 2021001538 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darell C.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Petition No. 2021001538 MSPB No. AT-3330-20-0228-I-1 DENIAL OF CONSIDERATION On October 27, 2020, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Here, the record reflects that an MSPB Administrative Judge (AJ) issued an initial decision on April 14, 2020, dismissing Petitioner’s appeal for lack of jurisdiction. In dismissing the appeal, the MSPB AJ properly advised Petitioner of the process for petitioning the Commission and the mailing address for filing the petition. We note that the MSPB AJ’s decision indicated that “if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination…you may request review by the Equal Employment Opportunity Commission of your discrimination claims only.” The MSPB AJ’s decision also provided Petitioner the Commission’s mailing address as “P.O. Box 77960, Washington, D.C. 20013.” Though Petitioner had the option of appealing the initial decision to the full MSPB, he did not do so. Thus, the initial decision became the final decision of the MSPB on May 19, 2020. 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. 2021001538 2 In his October 27, 2020 petition for review, Petitioner argues that his petition is timely because “[t]he [petition] got into Washington, D.C. in May, from May to September,” but “[n]o one [f]rom the Office of EEOC of OFO, [w]ould claim it or [s]ign for the [petition].” In support of his contention, Petitioner points to the scanned envelope contained in the record, which shows that the U.S. Postal Service (USPS) returned his May 4, 2020, mailing as “unclaimed.” The Agency opposes the petition and argues that the petition is indeed untimely because Petitioner sent his petition to the wrong address. In this regard, while the Agency acknowledges that Petitioner submitted into evidence an envelope with a USPS postmark date of May 4, 2020, the Agency argues that Petitioner improperly mailed the envelope to P.O. Box 19848, Washington, D.C. 20036 and P.O. Box 7760, Washington, D.C. 20013, rather than the provided address of P.O. Box 77960, Washington, D.C. 20013. The Agency reasons that Petitioner’s May 4, 2020 mailing was unclaimed because Petitioner did not mail his petition to the correct address. As for Petitioner’s October 27, 2020 mailing, the Agency acknowledges that the Commission received the petition; however, the Agency asserts that the October 27, 2020, mailing is untimely because Petitioner did not file the petition within the applicable filing period. Finally, the Agency asserts that Petitioner did not raise his allegations of discrimination with an EEO counselor and only raised these allegations for the first time in his petition. Having reviewed the record, we agree with the Agency’s position and find the petition to be untimely. Under our regulations, a petition must be filed with the Commission within 30 days of receipt of the MPSB final decision or within 30 days of when the decision of a MSPB AJ becomes final. 29 C.F.R. § 1614.303(c). Here, while we acknowledge that Petitioner submitted evidence showing that he initially filed his petition on May 4, 2020, within the applicable deadline, we find the petition to be improperly filed. The record clearly shows that Petitioner was properly informed of the correct mailing address for filing his petition but failed to mail his petition to the correct mailing address. See generally Derek R. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005631 (Dec. 29, 2020); Hattie K. v. U.S. Postal Serv., Appeal No. 0120180023 (Feb. 15, 2018), citing Pacheco v. U.S. Postal Serv., EEOC Request No. 05930700 (Sep. 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions); Meggitt v. U.S. Postal Serv., EEOC Appeal No. 01A40408 (Feb. 3, 2004) (above principle applied to a formal complaint that was untimely filed). The record further reflects that Petitioner’s October 27, 2020, filing occurred outside of the applicable 30-day window for filing a petition. We ultimately conclude that Complainant has not offered sufficient justification to warrant an extension of the time limit for filing his petition. Thus, we shall DENY consideration of the petition. 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. 2021001538 3 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 March 18, 2021 Date