0320160047
06-30-2016
Clifford L.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clifford L.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160047
MSPB No. DA1221120554W2
DENIAL OF CONSIDERATION
On June 11, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a May 26, 2016, final decision issued by the Merit Systems Protection Board (MSPB).
Effective April 6, 2012, the Agency removed Petitioner from his Radiologist position.
On August 1, 2012, Petitioner filed an individual right of action (IRA) appeal with the MSPB, alleging that the Agency removed him in retaliation for whistleblowing.
On September 16, 2015, after a hearing, an MSPB Administrative Judge (AJ) issued an initial decision denying Petitioner's request for corrective action. The MSPB AJ noted that Petitioner had filed an EEO complaint challenging his removal and that the Agency had accepted the complaint for investigation in or around April 2012. Although Petitioner argued that the Agency violated the "No Fear Act" by retaliating against him for filing an EEO complaint, the MSPB AJ found that the record reflects that Petitioner was attempting, or had attempted, to obtain relief in other forums for that claim. Although Petitioner argued that retaliation for filing an EEO complaint was a prohibited personnel practice under 5 U.S.C. �2302(b)(8) (i.e., retaliation for whistleblowing), the MSPB AJ found that the MSPB lacked jurisdiction over such a claim in an IRA appeal based on the law in effect at the time of his removal.
Petitioner then sought review by the full Board. On May 26, 2016, the Board issued a final order denying Petitioner's petition and affirming the MSPB AJ's initial decision. Although Petitioner argued that he was a minority male who was treated differently than a Caucasian female, the Board found that it lacked the authority to decide a discrimination claim in the context of an IRA appeal. The Board did not give Petitioner further review rights by the Commission.
Petitioner then filed the instant petition. In his petition, Petitioner argues that the Agency discriminated against him on the basis of race (Native American) by consistently treating Caucasian employees more favorably. Petitioner provided several examples of the alleged disparate treatment.
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. Here, because the MSPB found that it did not have the authority to decide a discrimination claim in the context of Petitioner's IRA appeal and did not make determinations on the merits of any allegations of discrimination, the Commission has no jurisdiction to review Petitioner's appeal.2
We note that, on January 14, 2014, Petitioner filed a civil action (5:14-CV-05016) in the United States District Court for the Western District of Arkansas, Fayetteville Division. The record reveals that the allegations raised therein are the same as those raised in the instant petition - Petitioner's removal. On July 13, 2015, the Court dismissed the case with prejudice pursuant to the doctrine of res judicata, finding that Petitioner had filed an earlier case (5:12-CV-05184) based on the same nucleus of operative facts. 29 C.F.R. � 1614.409 provides that filing a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the petition under these circumstances to prevent a petitioner from simultaneously pursuing both administrative and judicial remedies on the same matters so as to avoid the duplication of resources and the possibility of inconsistent and conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988).
Consequently, for the reasons cited above, 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
__6/30/16________________
Date
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.
2 While whistleblower retaliation is illegal, such claims are not within the purview of the statutes enforced by the Commission.
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