0320140051
02-11-2015
Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320140051
MSPB No. SF0752110427I1
DECISION
On May 16, 2014, 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 of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, Petitioner's appeal is dismissed for untimely filing of the appeal.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as an IT Specialist, GS-11/12 at the Agency's Portland Veterans Hospital in Portland, Oregon. Among other things, Petitioner alleged that the Agency discriminated against him on the bases of race, disability, and reprisal when he was removed for failure to follow instructions, failure to follow leave procedures, and inappropriate conduct.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision on February 17, 2012, which reversed the Agency's removal action because the Agency committed a due process violation in effecting the action. The AJ found that Petitioner did not prove his discrimination and affirmative allegations. Petitioner sought review by the full Board and a decision was issued on March 27, 2013, denying the petition for review and affirming the initial decision issued by the AJ. Petitioner was notified of his right to file an appeal to the EEOC within thirty (30) days. Petitioner, however, filed his appeal with the Commission on May 16, 2014.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.303(c) provides that a petition must be filed with the Commission either within thirty (30) days after receipt of the final decision of the MSPB or within thirty (30) days of when the initial decision of a MSPB field office becomes final.
In the instant case, a review of the decision reveals that the MSPB properly advised Petitioner that he had thirty (30) days after receipt of its decision to file his appeal with the Commission. Therefore, in order to be considered timely, Petitioner had to file his appeal no later than May 1, 2013. Petitioner did not file his appeal until May 16, 2014, which is approximately a year after the due date. Petitioner provided no justification for his late filing. Therefore, the Commission finds that Petitioner has not offered an adequate justification for an extension of the applicable time limit for filing his appeal. Consequently, the Commission finds that Petitioner's appeal is untimely; therefore, we deny consideration of this matter.
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
___2/11/15_______________
Date
2
0320140051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320140051