0320120028
05-08-2013
Susan M. Von Drasek, Petitioner, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
Susan M. Von Drasek,
Petitioner,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Petition No. 0320120028
MSPB No. DE-0432-11-0323-I-1
DENIAL OF CONSIDERATION
On February 15, 2012, Petitioner, through her attorney, filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
Petitioner alleged that the Agency discriminated against her on the basis of disability when, effective April 23, 2011, it removed from her position as a Chemist, GS-1320-11. On December 6, 2011, an MSPB Administrative Judge (MSPB AJ) issued an initial decision on the written record sustaining Petitioner's removal and finding no disability discrimination.
EEOC Regulation 29 C.F.R. � 1614.303(c) provides, in pertinent part, that a petition must be filed with the Commission within 30 days of when the decision of a MSPB field office becomes final. The MSPB AJ's initial decision became final on January 10, 2012. Therefore, in order to be considered timely, Petitioner had to file her petition by no later than February 9, 2012. Petitioner, however, did not properly file her petition with the Commission until February 15, 2012.
EEOC Regulation 29 C.F.R. � 1614.303(b) provides, in pertinent part, that filing shall be made to the Commission at P.O. Box 77960. Page 15 of the MSPB AJ's initial decision provided Petitioner with the proper Commission address for filing the petition - P.O. Box 77960. Despite the MSPB's clear and explicit instructions on where to file, Petitioner mailed her petition on February 9, 2012 to an outdated Commission address - P.O. Box 19848 - obtained from the website Justia.com. Petitioner hand-delivered her petition to the Commission's street address on February 15, 2012 after her petition was returned to her. The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing. See Pacheco v. U.S. Postal Serv., EEOC Request No. 05930700 (Sept. 10, 1993) (appeal untimely when sent to the wrong address despite receipt of proper instructions). Based on the above, we find that Petitioner's February 9, 2012 filing does not constitute a proper filing and that Petitioner's February 15, 2012 filing was untimely. Consequently, the Commission denies consideration of the 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 (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
_____5/8/13_____________
Date
2
0320120028
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013