Cleo S.,1 Petitioner,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

2019000211 (E.E.O.C. Nov. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cleo S.,1
Petitioner,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Petition No. 2019000211

MSPB No. CH-0752-17-0456-I-1

DENIAL OF CONSIDERATION

On January 22, 2018, Petitioner filed a petition for review with the Equal Employment
Opportunity Commission asking for review of a November 17, 2017 final decision issued by the
Merit Systems Protection Board (MSPB). For the reasons that follow, we deny consideration of
Petitioner’s petition.

Petitioner filed an appeal to the MSPB regarding his removal, effective June 27, 2017. An
MSPB Administrative Judge (AJ), without holding a hearing, issued a decision based on the
record that upheld Petitioner’s removal. The AJ’s decision did not address any allegation of
discrimination. In his petition for review, Petitioner acknowledged that the MSPB’s final
decision did not address an allegation of discrimination. According to Petitioner, “[i]n the
MSPB case, I was not allowed to present evidence or make a claim of disability discrimination . .
. .”

EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals or
complaints where the MSPB has issued a decision that makes determinations on allegations of
discrimination. 29 C.F.R. § 1614.303 et seq. Here, the MSPB did not make a determination on
the merits on any allegation of discrimination, but instead upheld Petitioner’s removal based on
grounds that our not within our jurisdiction, among other things, due process, efficiency of the
service, and the reasonableness of the penalty.

1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.
2019000211

2
Because the MSPB did not address any matters within the Commission’s purview, the
Commission has no jurisdiction to review Petitioner’s case. Consequently, the Commission will
DENY 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 16, 2018
Date