0320150035
05-13-2015
Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320150035
MSPB Nos. AT-0752-14-0397-I-1, AT-1221-14-0397-W-2
DENIAL OF CONSIDERATION
On February 7, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a January 15, 2015 final decision issued by the Merit Systems Protection (MSPB).
On January 20, 2014, Petitioner filed an appeal with the MSPB in connection with his removal, which was effective January 4, 2010.1 The MSPB docketed the appeal as MSPB No. AT-0752-14-0397-I-1. On March 4, 2014, an MSPB AJ determined that the MSPB had initially misconstrued the appeal by not docketing it as an individual right of action (IRA) appeal and re-docketed the appeal as MSPB No. AT-1221-14-0397-W-1. On April 28, 2014, the MSPB AJ dismissed the appeal without prejudice, pending a resolution of Petitioner's related federal district court case against the Agency. The MSPB AJ noted that he had not yet determined whether the MSPB had jurisdiction over the appeal. Subsequently, Petitioner re-filed the appeal. The MSPB docketed the appeal as MSPB No. AT-1221-14-0397-W-2.
On July 16, 2014, the MSPB AJ dismissed the appeal for lack of IRA jurisdiction. Petitioner then sought review by the full Board. On January 15, 2015, the Board issued a final order denying Petitioner's petition and affirming the MSPB AJ's dismissal. The Board did not give Petitioner further review rights by the Commission.
Petitioner then filed the instant petition. In his petition, Petitioner argued that the MSPB fraudulently changed his appeal from a prohibited personnel practice appeal to a whistleblower appeal and that the Commission has jurisdiction to review his appeal because his January 20, 2014 appeal form referenced his prior EEO complaint.
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, because the MSPB procedurally dismissed Petitioner's appeal for lack of IRA jurisdiction and did not make a determination on the merits on any allegations of discrimination, the Commission has no jurisdiction to review Petitioner's appeal. Consequently, the Commission will DENY consideration of the petition for review.2
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
_5/13/15_________________
Date
1 On January 29, 2010, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of race and reprisal for prior protected EEO activity when it removed him. On August 7, 2010, an MSPB AJ issued an initial decision finding no discrimination (MSPB No. AT-0752-10-0367-I-1). On July 27, 2011, the Board issued an order remanding the appeal for further adjudication to allow Petitioner to present additional evidence on his affirmative defenses (MSPB No. AT-0752-10-0367-I-1).
On January 7, 2015, an MSPB AJ dismissed the appeal as barred by the doctrine of collateral estoppel, citing previous litigation by Petitioner in federal district court (MSPB No. AT-0752-10-0367-B-4).
2 While whistle-blower retaliation is illegal, such claims are not within the purview of the statutes enforced by the Commission.
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0320150035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320150035