0320180008
11-08-2017
Michell B.,1 Petitioner, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michell B.,1
Petitioner,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180008
MSPB No. PH-531D-17-0393-I-1
DECISION
On October 23, 2017, Petitioner filed a petition with the Equal Employment Opportunity Commission seeking review of a Final Order issued by the Merit Systems Protection Board (MSPB) regarding MSPB No. PH-531D-17-0393-I-1. For the reasons that follow, we DENY consideration of Petitioner's petition, and REMAND this matter to the Agency for further processing.
BACKGROUND
In pertinent part, the record indicates that, on September 25, 2017, an MSPB Administrative Judge issued an initial decision that dismissed Petitioner's appeal regarding the Agency's denial of her within grade increase (WIGI) for not meeting an acceptable level of performance on the grounds that the MSPB lacked jurisdiction over the matter.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. However, when the MSPB, as it did here, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a), because the MSPB did not address any matters within the Commission's jurisdiction. Therefore, the Commission finds that it has no jurisdiction to review Petitioner's petition. This matter will be considered a "non-mixed" case and processed accordingly. 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). In accordance with these principles, Petitioner's request for review is DENIED and Petition No. 0320180008 is hereby administratively closed. MSPB No. PH-531D-17-0393-I-1 is referred to the Agency for further processing as outlined below.
ORDER
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b) that the Agency, if it has not already done so, is required to process her allegation of discrimination based on age, disability and sex with regard to the denial of her WIGI. Because Petitioner has already filed a mixed case complaint with the Agency, the Agency, pursuant to 29 C.F.R. � 1614.108(f), shall, within 30 calendar days of its receipt of this decision, notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on her discrimination claims pursuant to 29 C.F.R. � 1614.110.
A copy of the notification shall be provided to the Compliance Officer listed below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
_11/8/17_________________
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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