Brandon D.,1 Petitioner,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019005512 (E.E.O.C. Sep. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Brandon D.,1
Petitioner,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Petition No. 2019005512
MSPB No. DE-0752-19-0033-I-1

DECISION

On August 12, 2019, 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. DE-0752-19-0033-I-1. For the reasons that follow, we DENY
consideration of Petitioner’s petition.

BACKGROUND

In pertinent part, the record indicates that, on June 13, 2019, an MSPB Administrative Judge
issued an initial decision that dismissed Petitioner’s appeal regarding his removal for violating a
Last Chance Agreement (LCA) which resulted in his removal from his position as a Border
Patrol Agent on the grounds that the MSPB lacked jurisdiction.

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. Here, the MSPB dismissed Petitioner’s appeal on
the grounds that it lacked jurisdiction over his appeal because Petitioner did not establish that he
complied with the LCA, or that Agency breached the LCA’s confidentiality provision, or
otherwise acted in bad faith.

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.
2019005512

2
The Commission has no jurisdiction over these types of procedural determinations by the MSPB.
Because the MSPB’s decision did not address any matters within the Commission’s jurisdiction,
the Commission has no jurisdiction to review Petitioner’s case.2 Consequently, 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 (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

September 30, 2019
Date

2 The MSPB Administrative Judge found that the Agency’s alternate grounds for removal, i.e.,
Petitioner’s medical inability to perform his duties, was moot because Petitioner violated the
LCA. Again, this is a procedural determination over which we have not jurisdiction to review.