0320160038
05-13-2016
Deandre C.,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
Deandre C.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160038
MSPB No. DE0752160101I1
DENIAL OF CONSIDERATION
On May 5, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. �� 4301-4333.2
Petitioner worked as a Program Support Clerk at the Agency's Veterans Service Center in the Phoenix Regional Office in Phoenix, Arizona. Petitioner filed an appeal alleging that the Agency discriminated against him when he was not promoted to one of the twelve GS-7 grade level Veteran Service Representative positions which it advertised in November 2013, and filled in early 2014. Petitioner raised three USERRA-based contentions as to why he was wrongly not selected.
In a decision dated March 4, 2015, the MSPB Administrative Judge (AJ) issued a decision denying Petitioner's request for corrective action under USERRA. The AJ found that Petitioner failed to establish by preponderant evidence that the Agency discriminated against him based on his uniformed service status, status as a veteran, or his then current reservist obligations when he was not selected for one of the twelve Veterans Service Representative positions.
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 under the federal laws which the Commission enforces.3 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
___5/13/16_______________
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 The Commission notes that in his petition Petitioner contends that his case is not a USERRA discrimination claim but a "Discrimination Claim." Petitioner, however, does not put forth any arguments about which specific EEO statute he believes is at issue in his case.
3 The Commission has repeatedly held that, to the extent that a claim is based on veteran's status or preference, it does not come within the purview of the 29 C.F.R. Part 1614 EEO complaint process. Devereux v. United States Postal Service, EEOC Request No. 05960869 (April 24, 1997); Rowe v. Department of Commerce, EEOC Appeal No. 0120073252 (October 11, 2007).
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