0120091660
03-08-2011
Frances G. Brown, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Frances G. Brown,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091660
Agency No. 9465889002
DISMISSAL
On February 14, 2009, Complainant initially filed an appeal with this
Commission, apparently from a January 15, 2009 letter from the Office
of Personnel Management (OPM) indicating her application for disability
retirement was incomplete and could not be acted upon. She apparently
simultaneously filed a similar appeal with the Merit Systems Protection
Board (MSPB) concerning the same matter. She later sought review by
this Commission of decisions of the MSPB on her appeal.
At the time of events giving rise to this complaint, Complainant worked
as a Supervisory Staff Accountant, GS-12, at the Agency's Naval Aviation
Depot facility in Pensacola, Florida. The documents Complainant filed
with the Commission indicate that in her appeal to the MSPB she alleged
discrimination on the bases of race (African-American), sex (female),
and disability (mental) in connection with her application for disability
retirement.
Information submitted by Complainant indicates that the MSPB issued
an initial decision on June 8, 2009, dismissing the matter for lack of
jurisdiction. In that decision, the MSPB Administrative Judge (AJ) noted
that Complainant had filed her appeal prematurely as OPM had not yet
made a decision on her disability benefits because her application was
incomplete. Once Complainant provided OPM with a complete application,
OPM would make a decision on the application. The MSPB AJ indicated
that if the application was denied, Complainant could request OPM
reconsideration of the denial. If Complainant did not prevail in the
reconsideration decision, OPM would provide Complainant the right to
appeal to the MSPB. Therefore, Complainant's February 14, 2009 appeal
to the MSPB was dismissed for lack of current jurisdiction. On October
9, 2009, Complainant sought review by the full Board, which denied the
petition.
EEOC regulations provide that the Commission has jurisdiction over
allegations of discrimination raised in connection with an action
appealable to the MSPB. 29 C.F.R. � 1614.302. Here, however, the MSPB
dismissed the matter pending a final decision from OPM. The Commission
has no jurisdiction over procedural matters of the Board. Because the
MSPB did not address any matters within the Commission's jurisdiction, the
Commission has no jurisdiction to review Complainant's claims. Further,
because Complainant may still raise the matter with the MSPB after OPM
issues a final decision, the matter is not yet ripe for adjudication.
Accordingly, the Commission dismisses the instant appeal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
March 8, 2011
__________________
Date
2
0120091660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091660