0320110046
10-28-2011
Sylvester E. Harding, Petitioner, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sylvester E. Harding,
Petitioner,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320110046
MSPB No. DC-0752-10-0064-I-1
DENIAL OF CONSIDERATION
On August 19, 2011, Petitioner filed a petition with the Equal Employment
Opportunity Commission asking for review of a final decision issued
by the Merit Systems Protection Board (MSPB) concerning his 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 him on the
basis of reprisal for prior protected EEO activity when it indefinitely
suspended him from his position of Housekeeping Aid, pending investigation
of probable criminal conduct. Petitioner appealed his suspension to
the MSPB. On December 16, 2009, an MSPB Administrative Judge (MSPBAJ)
issued an initial decision on the written record reversing Petitioner’s
suspension because it lacked an ascertainable end. The Agency appealed
the MSPBAJ’s initial decision to the full Board. On December 9,
2010, the Board issued a final decision granting the Agency’s petition
for review, reversing the MSPBAJ’s initial decision, and sustaining
Petitioner’s indefinite suspension.1
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
receipt of the final decision of the MSPB. According to Complainant,
he received the MSPB final decision on or about January 19, 2011.
Therefore, in order to be considered timely, Petitioner had to file his
petition by no later than February 18, 2011. Petitioner’s petition
for review is postmarked August 19, 2011. Petitioner has not offered
any justification for an extension of the applicable time limits for
filing his petition. 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
___10/28/11_______________
Date
1 Although the MSPB did not address the issue of discrimination, we note
that Complainant appeared to allege that his indefinite suspension was
discriminatory in his December 7, 2009 submission to the MSPBAJ.
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0320110046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110046