03A20087
03-04-2003
Ahmad Nurriddin, Petitioner, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.
Ahmad Nurriddin v. National Aeronautics and Space Administration
03A20087
March 4, 2003
.
Ahmad Nurriddin,
Petitioner,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Petition No. 03A20087
MSPB No. DC-531D-02-0456-I-1
DECISION
On August 19, 2002, petitioner filed a timely 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. Petitioner alleged that he was
discriminated against on the bases of his race (African-American), sex,
religion (Muslim), disability (depression, anxiety, and back pain), and in
retaliation for participation in protected equal employment opportunity
(EEO) activity, when on several occasions, among them November 1999 and
2000, he was denied within-grade increases.
On April 22, 2002, petitioner filed an appeal of the aforementioned
agency actions with the MSPB. On May 31, 2002, the assigned MSPB
Administrative Judge (AJ) issued an Initial Decision in which he dismissed
the appeal without prejudice. In his Initial Decision, the AJ stated that
petitioner had indicated in his initial filing with the MSPB that he had
previously filed a formal complaint of discrimination with the agency,
which addressed the same agency action he had appealed to the MSPB.
The AJ noted that pursuant to 5 C.F.R. � 1201.154, the right of an
employee to appeal an appealable agency action to the MSPB does not vest
where an employee first files a discrimination complaint with the agency
until either the agency issues a final decision on the complaint or 120
days elapse. The AJ found that there was no evidence which indicated
that either of these conditions had been met, and therefore dismissed
the appeal. The AJ provided that petitioner could refile his appeal to
the MSPB upon the agency's issuance of a final decision in his formal
discrimination complaint, or upon the passage of 120 days from the filing
of that complaint with the agency.
Petitioner then filed with the MSPB a petition for review of the Initial
Decision, and in its Final Order the MSPB denied the petition for review.
In its Final Order, however, the MSPB noted that 120 days had now passed
since petitioner filed his formal discrimination complaint with the
agency, and therefore it forwarded the matter to its Washington Regional
Office for adjudication as a timely refiled appeal.<1> Petitioner then
filed the instant petition for review with the Commission, without
indicating why he believes the decision of the MSPB was incorrect.
The agency has not responded to the petition for review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. Those same regulations provide that the Commission will not
accept appeals from MSPB dismissals without prejudice. Id. � 1614.303(a).
As it is uncontested that in the MSPB decision for which petitioner
sought Commission review the MSPB dismissed his appeal without prejudice,
it is the decision of the Commission to DENY 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 4, 2003
Date
1 There is no indication in the record as to the MSPB's disposition of
the matter subsequent to its return to the MSPB's Washington Regional
Office for adjudication as a timely refiled appeal.