0320100035
10-19-2010
Harry M. Schmitt, Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Harry M. Schmitt,
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320100035
MSPB No. AT1221100364W1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning its dismissal of his individual right of action appeal asserting the Agency took various personnel actions against him based on unlawful retaliation.
A MSPB Administrative Judge (AJ) issued an initial decision dismissing the matter for lack of jurisdiction. The AJ found that Petitioner had entered into a global settlement agreement with the Agency on December 12, 2003, in an action pending before the EEOC, and waived any claims that Petitioner might have resulting from his employment with the Agency. Further, the AJ noted that Petitioner had gone to the U.S. Court of Appeals for the Federal Circuit regarding the settlement agreement.1 The Federal Circuit upheld the validity of the agreement.
Petitioner sought review of the MSPB AJ's initial decision. In an Opinion and Order, the full Board found that petitioner was represented by counsel when he entered into the agreement. The Board further found that petitioner knowingly and voluntarily entered into the settlement agreement and, in the alternative, that the agreement had been upheld by the Federal Circuit. Thus, petitioner was found to be collaterally estopped from re-litigating the voluntariness of the settlement agreement. Therefore, the AJ's dismissal of the action was upheld.
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, the MSPB dismissed the appeal on the basis of collateral estoppel and because petitioner had gone to the Federal Circuit. Because the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review petitioner's case. Consequently, the Commission denies 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 (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
October 19, 2010
__________________
Date
1 Additionally, the Commission addressed matters concerning the settlement agreement in Appeal No. 01A52006 (July 20, 2005).
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0320100035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320100035