0320130046
03-28-2014
Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320130046
MSPB No. DE-0752-11-0333-I-1
DECISION
On July 29, 2013, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of an Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, we DENY consideration of Petitioner's petition.
BACKGROUND
In pertinent part, the record indicates that Petitioner worked as a Hospital Housekeeping Officer at the VA Medical Center located in Cheyenne, Wyoming. In September 2009, he left federal service pursuant to disability retirement. Subsequently, in May 2011, he filed an appeal with the MSPB alleging that his retirement was involuntary and that he was discriminated against due to his disability. On August 10, 2011, the MSPB issued an initial decision that dismissed Petitioner's appeal for lack of jurisdiction. Petitioner did not file a petition seeking a review by the full Board of the initial decision. Although Petitioner was not provided appeal rights to the EEOC, he, through his attorney, filed the instant petition to the EEOC seeking a review of the initial decision.
The Agency argues that Petitioner's petition should not be considered because, among other things, it concerns a matter over which the Commission has no jurisdiction, i.e., the MSPB's procedural determination that it has no jurisdiction in this case.
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 in this case, 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. Thus, 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). Therefore, the Commission finds that it has no jurisdiction to review Petitioner's petition. In accordance with these principles, Petition No. 0320130046 is hereby administratively closed.1
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
__3/28/14________________
Date
1 The Agency presented evidence that shortly after filing his appeal with the MSPB, Petitioner also filed an EEO complaint which contained an allegation concerning his alleged involuntary disability retirement. The Agency issued a final decision on August 24, 2011 that dismissed this claim along with several others. Petitioner did not appeal the dismissal to the Commission; consequently, we will not direct the Agency to process the above unmixed claim in this case, i.e., Petitioner's alleged involuntary retirement, because it is the same allegation that has already been addressed by the Agency.
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0320130046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320130046