0320160028
04-08-2016
Cortney E.,1 Petitioner, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cortney E.,1
Petitioner,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Petition No. 0320160028
MSPB No. DC0752151185I1
DENIAL OF CONSIDERATION
On January 25, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner worked as a Carrier Technician at the Agency's Lafayette Post Office in Fayetteville, North Carolina. Petitioner filed a mixed case appeal alleging that the Agency discriminated against her on the bases of age, disability, and reprisal for prior EEO activity, when, on July 9, 2015, she was sent home on Emergency Placement as a result of an incident between her and another co-worker, and the co-worker was allowed to return on July 29, 2015 while Petitioner remained out of work until October 17, 2015. Petitioner was subsequently issued a notice of removal.
On December 14, 2015, the MSPB issued an Initial Decision dismissing Petitioner's appeal, with prejudice. The decision noted that Petitioner withdrew her appeal by notice on December 4, 2015. On December 7, 2015, the MSPB Administrative Judge (AJ) issued a notice advising Petitioner that a withdrawal of an appeal was an "act of finality that removes the appeal from the Board's jurisdiction. The decision indicated that Petitioner failed to file a response rescinding her withdrawal request, and therefore the AJ dismissed the appeal with prejudice. Petitioner subsequently filed the instant petition.
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. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c). Here, the MSPB did not make a determination on the merits of any allegations of discrimination. Because the MSPB did not address any matters within the Commission's jurisdiction, 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
__4/8/16________________
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.
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