0320080092
08-29-2008
David M. Shipp, Petitioner, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
David M. Shipp,
Petitioner,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 0320080092
MSPB No. SF0432070279I1
DENIAL OF CONSIDERATION
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).
Petitioner was removed from his position of Chemist on charges of
unacceptable performance. He appealed his removal to the MSPB. On July
16, 2007, the parties entered into a settlement agreement, and on July
20, 2007, a MSPB Administrative Judge (AJ) issued an initial decision
dismissing the appeal because the matter had been settled.
Later, petitioner then filed a petition for review with the full Board,
asserting non-compliance with the settlement agreement. On November 21,
2007, the Board found his petition was untimely filed, and remanded
petitioner's claims of noncompliance for docketing as a petition for
enforcement with the MSPB's regional office. Thereafter, an initial
decision was issued on February 21, 2008, denying the petition for
enforcement. Petitioner sought review of that decision, and on July
3, 2008, the Board denied the petition for review. It should be noted
that none of the Board's decisions gave petitioner appeal rights to the
Commission. Petitioner then filed the instant petition.
EEOC regulations provide that the Commission has jurisdiction over
allegations of discrimination raised in connection with an action
appealable to the MSPB. 29 C.F.R. � 1614.302. Here, the parties
entered into a settlement agreement before the MSPB. The Commission has
no jurisdiction over enforcement matters of the Board. 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 denies the petition for review.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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 (Z0408)
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
August 29, 2008
__________________
Date
2
0320080092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0320080092