0320170027
04-24-2017
Gino T.,1 Petitioner, v. John F. Kelly, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gino T.,1
Petitioner,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320170027
MSPB Nos. PH-0752-12-0402-C-1, PH-0752-12-0402-X-1
DENIAL OF CONSIDERATION
On January 26, 2017, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Petitioner filed a mixed case complaint alleging that the Agency discriminated against him because of reprisal for prior protected EEO activity when, effective February 24, 2011, he was removed from his position of Customs and Border Protection Officer. Subsequently, the Agency issued a final decision finding no discrimination.
In June 2012, Petitioner appealed the matter to the MSPB (MSPB No. PH-0752-12-0402-I-2). On February 25, 2014, the MSPB reversed the removal, but found no discrimination. The MSPB ordered the Agency to cancel the removal and pay Petitioner the correct amount of back pay, interest on back pay, and other benefits. Petitioner then filed a petition for review with the Commission. In EEOC Petition No. 0320140037 (Jan. 13, 2016), the Commission concurred with the MSPB's finding of no discrimination.
In December 2014, Petitioner filed a petition for enforcement with the MSPB of the February 25, 2014, order (MSPB Nos. PH-0752-12-0402-C-1, PH-0752-12-0402-X-1). On December 27, 2016, the MSPB found the Agency in compliance and dismissed Petitioner's petition for enforcement. Petitioner then filed the instant petition for review with the Commission. In his petition, Petitioner argues that the MSPB erred in dismissing his petition for enforcement because he had not received the correct amount of back pay.
EEOC regulations provide that the Commission has jurisdiction over mixed case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. Here, Petitioner is asking the Commission to review the MSPB's December 27, 2016, final decision dismissing his petition for enforcement. In that decision, the MSPB did not address any allegations of discrimination, but instead found the Agency in full compliance with the February 25, 2014, order. Insofar as Petitioner is attempting to relitigate his discrimination claim, we emphasize that the Commission previously concurred with the MSPB's finding of no discrimination.
As the MSPB's December 27, 2016, final decision 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
__4/24/17________________
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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