03A30030
03-06-2003
Robert K. Oja, Petitioner, v. Thomas E. White, Secretary, Department of the Army, Agency.
Robert K. Oja v. Department of the Army
03A30030
March 6, 2003
.
Robert K. Oja,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Petition No. 03A30030
MSPB No. SE-0752-99-0003-C-1
DENIAL OF CONSIDERATION
On November 6, 2002, Robert K. Oja (petitioner) filed a timely petition
with the Equal Employment Opportunity Commission (Commission) regarding
the Merit Systems Protection Board's (MSPB) final decision on his case.
The petition is governed by the Civil Service Reform Act of 1978 and
EEOC Regulations at 29 C.F.R. 1614.303 et seq.
Petitioner filed a mixed-case appeal with the MSPB concerning his
September 5, 1998 removal based on two absence-related charges of
misconduct. Petitioner alleged that this action violated Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The MSPB dismissed the appeal on April 5,
1999, finding that the parties settled the matter and, by the terms
of the settlement agreement, petitioner agreed to the dismissal of his
appeal. The MSPB Administrative Judge (AJ) concluded that the agreement
was freely reached and lawful. The parties were advised that the
agreement had been made part of the record and that petitioner could
ask the MSPB to enforce the agreement if he believed the agency did not
fully comply.
On September 12, 2001, petitioner filed a petition for enforcement with
the MSPB, alleging that the agency failed to comply with the terms of
the settlement agreement. The AJ determined that the agency had not
violated the agreement and denied petitioner's petition for enforcement.
On November 22, 2002, the MSPB denied petitioner's petition for review
of the AJ's initial decision. Neither the initial decision nor the final
order gave petitioner appeal rights to the EEOC. Nonetheless petitioner
filed a petition for review with the EEOC. Therein, he noted that he
was unsure whether he had the right to request EEOC review, but was told
in telephone conversations with the MSPB and the EEOC, that he could
request review.
EEOC Regulations provide that the Commission has jurisdiction over mixed
cases in which the MSPB has issued a decision that makes determinations
on allegations of discrimination. See 29 C.F.R. 1614.303 et seq. In the
present case, petitioner is asking the Commission to review the MSPB's
final decision on a petition for enforcement. Although petitioner raises
claims of discrimination in his petition to the Commission, the MSPB did
not address any allegations of discrimination, but rather concluded that
the settlement agreement had not been breached. Moreover, the record
is clear that the MSPB retained jurisdiction over enforcement matters
in relation to the settlement agreement. In these circumstances, the
Commission does not have jurisdiction over petitioner's petition. See,
e.g., James v. United States Postal Service, EEOC Petition No. 03950015
(June 6, 1995) (dismissed petitioner's request for review of MSPB's
decision on petition for enforcement for lack of jurisdiction where the
decision did not address any allegations of discrimination and petitioner
was not given appeal rights to the Commission); Gallegos v. Department
of the Interior, EEOC Petition No. 03940150 (February 2, 1995)
(dismissed petitioner's request for review of MSPB's decision on petition
for enforcement of settlement agreement for lack of jurisdiction).
Consequently, the Commission will not consider the petition for review.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 6, 2003
Date