[Redacted], Stefan H., 1 Petitioner,v.Norris Cochran, Acting Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Mar 18, 2021

Petition No. 2021001804 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stefan H.,1 Petitioner, v. Norris Cochran, Acting Secretary, Department of Health and Human Services, Agency. Petition No. 2021001804 MSPB No. AT-1221-20-0827-W-1 DENIAL OF CONSIDERATION On January 6, 2021, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order 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. At the time of events giving rise to the underlying complaint, Petitioner worked as a Public Health Advisor at the Agency’s Office of Family Planning in Atlanta, Georgia. Petitioner filed a claim with the Office of Special Council (OSC) concerning his claim of retaliation for protected activity relating to his claim of reprisal for whistleblowing and/or protected activity due to violations by the Agency of 5 U.S.C.§ 2302(b) (8) or (b)(9). Petitioner then filed an appeal of the OSC’s decision to the MSPB. On October 5, 2020, the Agency filed a motion asserting that the MSPB AJ lacked the authority to decide the appeal pursuant to the decisions issued by the Supreme Court in the case of Lucia v. Sec. Exch. Comm’n., 138 S. Ct. 2044 (2018). On November 2, 2020, the MSPB AJ dismissed the appeal without prejudice. The MSPB AJ determined that the matter of whether the Board’s administrative judges have the authority to decide matters such as this under Lucia was currently pending before the Board. Accordingly, in the interest of judicial economy, the MSPB AJ determined that there was good cause to dismiss the appeal without prejudice in order to allow a newly confirmed Board to address this issue. 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. 2021001804 2 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. Here, the MSPB AJ dismissed Petitioner’s appeal without prejudice. The initial decision informed Petitioner that the MSPB will automatically refile the appeal on April 28, 2022. It also provided Petitioner that he may file a request if the Board issues a decision addressing the Lucia issue prior to April 28, 2022. As such, the matter is still pending before the MSPB. In accordance with these principles, Petitioner’s request for review is DENIED and Petition No. 2021001804 is hereby administratively closed. 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 March 18, 2021 Date