Phyllis G.,1 Petitioner,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 21, 2018

2019000633 (E.E.O.C. Dec. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Phyllis G.,1
Petitioner,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Petition No. 2019000633

MSPB No. AT-1221-18-0607-W-1

DECISION

On July 11, 2018, Petitioner filed an appeal with the Merit Systems Protection Board (MSPB)
asserting that the Agency retaliated against her for engaging in protected whistleblowing activity
when it terminated her temporary appointment, effective June 28, 2018. On August 2, 2018, an
MSPB Administrative Judge dismissed Petitioner’s appeal as being premature. On November 5,
2018, Petitioner filed a petition with the Equal Employment Opportunity Commission
(Commission) seeking review of the final decision.

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. Here, the MSPB dismissed Petitioner’s appeal as
being premature. The Commission has no jurisdiction over these types of procedural
determinations by the MSPB. Because the MSPB’s decision did not address any matters within
the Commission’s jurisdiction, the Commission has no jurisdiction to review Petitioner’s case.2

Consequently, the Commission will DENY consideration of the petition for review.

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.
2 Moreover, we note that Petitioner is alleging violations of the Whistleblower Protection Act.
The Commission has previously held that whistleblower activities are generally outside the
purview of the EEO process. See Giannu v. Department of Housing and Urban Development,
EEOC Request No. 05880911 (February 13, 1989).
2019000633

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 (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

December 21, 2018
Date