0320130018
06-28-2013
James G. Evans, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
James G. Evans,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320130018
MSPB No. DE0752110337I1
DENIEL OF CONSIDERATION
Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB). For the reasons set forth in this decision, Petitioner's request is DENIED.
BACKGROUND
The MSPB issued a final decision on March 1, 2013. In its decision, the MSPB, in pertinent part, found:
1. The Board lacked jurisdiction over [Petitioner's] involuntary disability retirement appeal because the [Petitioner] was hired under Title 38 and therefore was not an employee with Chapter 75 appeal rights to the MSPB; and
2. The [Petitioner] failed to prove his USERRA claim because he failed to demonstrate that his military status was a motivating or substantial factor in the Agency's action.
Although he was not provided appeal rights to the Equal Employment Opportunity Commission, Petitioner, on March 26, 2013, filed a petition for review of the MSPB's decision.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegations of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
In the present case, however, we find that the Commission has no jurisdiction in this matter because the MSPB has not addressed an allegation of discrimination for which the Commission has jurisdiction. The MSPB's determination that Petitioner did not meet the definition of an employee, who could file an appeal to it, is clearly a procedural matter that the Commission cannot review. Likewise, the Commission has repeatedly held that, to the extent that a claim is based on veterans' status or preference, it does not come within the purview of the 29 C.F.R. Part 1614 EEO complaint process. Chaves v. EEOC, EEOC Petition No. 0320100050 (May 9, 2011); Rowe v. Department of Commerce, EEOC Appeal No. 0120073252 (October 11, 2007); Devereux v. United States Postal Service, EEOC Request No. 05960869 (April 24, 1997).
Accordingly, we DENY consideration of this matter. EEOC Petition No. 0320130018 is hereby administratively closed, and the matter is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process his allegations of disability discrimination and reprisal for engaging in prior protected EEO activity pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall notify Petitioner of the right to contact an EEO counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R � 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor.1
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
__6/28/13________________
Date
1 See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320130018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013