0320150077
10-15-2015
Keri C.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Keri C.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Petition No. 0320150077
MSPB No. DC-0752-13-5718-I-1
DENIAL OF CONSIDERATION
On July 7, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a June 8, 2015 final decision issued by the
Merit Systems Protection Board (MSPB). For the reasons that follow, we deny consideration of Petitioner's petition.
Petitioner served as a Contract Specialist with the Agency and was furloughed for 6 days following the March 1, 2013 sequester order. She filed an appeal of the Agency's furlough action. Following a hearing, an MSPB Administrative Judge issued an initial decision sustaining the Agency's action, finding that the Agency was required to furlough employees based on a budget shortfall, and that it did so in a fair and even manner.
Petitioner then filed a petition for review with the Full Board primarily challenging the Administrative Judge's denial of her harmful error allegation based on a violation of the Memorandum of Agreement concerning her reasonable accommodation. The Full Board, however, found that she did not establish her harmful error affirmative defense. The Full Board also found that Petitioner failed to raise an affirmative defense of disability discrimination in the proceedings below, and that she could not raise such a claim for the first time on review before the Full Board. According to the Full Board, the record reflects that Petitioner did not raise her disability discrimination allegations in her initial appeal, and that she did not do so in response to the Administrative Judge's affirmative defenses order. 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 disability discrimination because she raised it for the first time in her 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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