0320150026
10-15-2015
Jimmy C.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jimmy C.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320150026
MSPB No. DA-0842-14-0035-I-1
DENIAL OF CONSIDERATION
On January 3, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a December 4, 2014 final decision issued by the
Merit Systems Protection Board (MSPB). For the reasons that follow, we deny consideration of Petitioner's petition.
Petitioner is a Chief Supervisory Custom Border Protection Officer (CBPO), GS-1895-13. On September 5, 2013, the Agency issued a reconsideration decision affirming its initial finding that he was not entitled to enhanced CBPO retirement coverage under the Federal Employees' Retirement System. Petitioner filed an appeal with the Board alleging, among other things, that the Agency erred in not finding his current position a primary position because, due to staffing shortages, he was required to perform primary CBPO and first line supervisory duties at least 50 percent of the time.
Following a hearing, an MSPB Administrative Judge issued an initial decision affirming the Agency's decision denying Petitioner enhanced CBPO retirement coverage. Petitioner filed an appeal with the Full Board.
The Full Board's decision noted that Petitioner, for the first time in his appeal, alleged that the Agency had also discriminated against him based on his sex and age when he was not offered a reassignment to establish his entitlement to enhanced CBPO retirement. The decision indicated that neither the initial appeal nor Petitioner's prehearing submissions contained the discrimination claim.
According to the Full Board, Petitioner:
[b]ased on his testimony at the hearing . . . knew sufficient facts surrounding the reassignment to have raised his claims of discrimination before the administrative judge but failed to do so. [Petitioner's] sex and age discrimination claims cannot be raised for the first time on review when he had sufficient knowledge of the facts and circumstances to have formed a reasonable suspicion that discrimination occurred but failed to raise an allegation of discrimination before the administrative judge.
The Full Board denied Petitioner's appeal. This appeal to the Commission followed.
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. Here, the MSPB did not make a determination on the merits on any allegation of discrimination, but rather declined to address Petitioner's allegations of sex and age discrimination because he raised it for the first time in petition to the Full Board. Because the MSPB did not address any matters within the Commission's purview, the Commission has no jurisdiction to review Petitioner's case. 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
__10/15/15________________
Date
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.
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