0320150072
09-03-2015
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
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320150072
MSPB No. DA-0752-15-0140-I-1
DECISION
Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim that the Agency removed him because of his sex and age. For the reason listed below, Petitioner's request is DENIED.
On January 30, 2015, an MSPB Administrative Judge (AJ) issued a decision that dismissed Petitioner's appeal on the grounds that it was filed in an untimely manner. Petitioner filed an appeal with the Full Board, and on May 11, 2015, a decision was issued that, in pertinent part, upheld the dismissal of Petitioner's appeal as untimely. This appeal 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. The Commission must determine whether the decision of the MSPB with respect to an allegation 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 issued a decision that addresses an allegation of discrimination. The decisions issued by the MSPB concern the procedural matter of whether Petitioner filed his appeal in a timely manner. In finding that we have no jurisdiction here, the Commission is neither addressing nor condoning the Agency's actions, we are merely stating that because the MSPB's decision does not make determinations on allegations of discrimination, there is nothing for us to consider.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to DENY consideration of the instant 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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________adden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/3/15________________
Date
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