03A40137
10-28-2004
Byron J. Baker, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Byron J. Baker v. Department of Veterans Affairs
03A40137
October 28, 2004
.
Byron J. Baker,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A40137
MSPB No. DA-0752-04-0198-I-1
DENIAL OF CONSIDERATION
By petition postmarked August 4, 2004, the petitioner, by and through
his attorney, filed a petition with the Equal Employment Opportunity
Commission asking for review of the final decision of the Merit Systems
Protection Board (MSPB) concerning his claim of discrimination.
EEOC Regulation 29 C.F.R. �1614.303(c) provides that to be timely,
a petition must be filed with the Commission either within 30 days of
receipt of the final decision of the MSPB, or within 30 days of when
the decision of the MSPB field office becomes final. A document shall
be deemed timely if it is delivered in person or postmarked before the
expiration of the applicable filing period, or in the absence of a legible
postmark, it is received by mail within five days of the expiration of
the applicable filing period. 29 C.F.R. �1614.604(b).
The record shows that the MSPB issued its initial decision on May 28,
2004, and on the same day by regular mail sent copies of it to the
petitioner and his attorney. The initial decision stated it would become
final on July 2, 2004 unless a petition for review was filed by that
date with the MSPB or the Board reopened the case on its own motion.
It notified the petitioner that he could file a request to review the
decision with the Commission, provided the filing address, and advised
that the petitioner could file a petition with the Commission no later
than 30 calendar days after the date the initial decision became final.
The decision became final on July 2, 2004. The petitioner's petition
to the Commission is postmarked Wednesday, August 4, 2004, beyond the
30-day time limit.
The MSPB's decision reversed a notice of removal dated September 30,
2003 issued to the petitioner, and ordered in part that he be restored
to his position. The decision found that the petitioner was removed
in retaliation for filing a prior appeal with the MSPB. It found no
discrimination based on disability. The decision did not discuss or
award compensatory damages. On petition, the petitioner states that he
delayed filing his petition because there was uncertainty in the law on
whether the issue of damages should be pursued with the MSPB or EEOC.
This argument does not provide adequate justification for extending the
30-day time limitation set forth in 29 C.F.R. �1614.303(c). As the
petitioner's petition was untimely filed, the Commission denies his
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
October 28, 2004
__________________
Date