0320110030
08-25-2011
Harold L. Wilborn, Petitioner, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Harold L. Wilborn,
Petitioner,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320110030
MSPB No. SF-4324-10-0764-I-1
DENY CONSIDERATION
On April 30, 2011, Petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a final decision
issued by the Merit Systems Protection Board (MSPB). For the reasons
set forth in this decision, Petitioner’s request is DENIED.
BACKGROUND
The record indicates that Petitioner is a veteran. He served in the
U.S. Navy from 1978 until 1985. Petitioner applied for the position of
Supervisory Sector Enforcement Specialist, GS-1801-12, in San Ysidro,
California, with the Border Patrol. Petitioner was not selected for
the position. Subsequently, he filed a complaint with the Department of
Labor, Office of Veterans Employment and Training, alleging violations of
his rights under the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA).1 He subsequently alleged additional violations of
USERRA when he received a 5-day suspension, and was allegedly subjected
to a hostile working environment.
On October 1, 2010, after a hearing, a MSPBAJ issued an initial decision
denying Petitioner’s USERRA claims.2 Specifically, the MSPBAJ found
that Petitioner did not prove that his military status or obligations were
a motivating factor for the non-selection, suspension, or the Agency’s
alleged harassment and creation of a hostile work environment.3 The
Petitioner filed a petition for review by the Full Board. The Full
Board, in a decision dated March 31, 2011, denied the petition finding
that there was no new, previously unavailable evidence or that the MSPBAJ
made an error in law or regulation that affected the outcome. A review
of the decisions of the MSPBAJ and the Full Board indicate that neither
addressed any issue of discrimination based on the statutes that the
Commission enforces, i.e., Title VII, the ADEA, the Rehabilitation Act,
or the Equal Pay Act, nor was the Petitioner provided appeal rights to
the Commission.
As noted above, on April 30, 2011, Petitioner filed a petition for
review with the Commission where he alleged that the Agency’s actions
were based on his race (Black) and in violation of the USERRA. Among
other things, he maintained that he was denied a hearing on his USSERA
claim4, and was discriminated against with regard to the non-selection,
suspension, the Agency’s alleged harassment and creation of a hostile
work environment. Petitioner also maintained that he was discriminated
against in the USERRA hearing because the MSPBAJ afforded other parties
the opportunity of paid administrative leave during the hearing, but
not him.
ANALYSIS AND FINDINGS
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.
In the present case, we find that the Commission has no jurisdiction
in this matter because the MSPB has not addressed an allegation of
discrimination for which the Commission has jurisdiction.5 Although
Petitioner, in his petition to the Commission, raised the issue of
discrimination based on race, this was not an aspect of the MSPB’s
decisions. In finding that we have no jurisdiction here, the Commission
is neither addressing nor condoning the Agency’s actions; we are merely
stating that because the MSPB’s decisions do not make determinations
on allegations of discrimination that we can address, there is nothing
for us to consider.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the
Commission to DENY consideration of the instant 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___8/25/11_______________
Date
1 USERRA prohibits discrimination based on, among other things, prior
military service or the obligation of future military service.
2 Complainant also alleged a violation of the Veterans Employment
Opportunities Act of 1998 (VEOA) in that he did not receive a veterans
preference with regard to his non-selection. The MSPBAJ did find that
Petitioner VEOA rights were violated when he was denied a veterans
preference under VEOA and in a second decision, also dated October 1,
2010, ordered the Agency to “reconstruct the hiring for the position.”
3 The MSPBAJ noted that a USERRA appeal is limited to a determination
whether the Agency’s actions were motivated by discrimination due to
military service. Other forms of discrimination, the MSPBAJ indicated,
may not be considered, except to the extent they might bear on the issue
of discrimination due to military service.
4 Petitioner also made this assertion in his petition to the Full Board.
The Board, however, noted that the record indicated that the MSPBAJ did
hold a hearing on the merits of Petitioner’s claim. We specifically
note that the record contains a copy of the hearing transcript, which
indicates that a hearing was held on Petitioner’s USERRA and VEOA
claims. .
5 We note that the Commission has repeatedly held that, to the extent
that a claim is based on veterans status or preference, it does not come
within the purview of the 29 C.F.R. Part 1614 EEO complaint process.
Chaves v. EEOC, EEOC Petition No. 0320100050 (May 9, 2011); Rowe
v. Dep’t of Commerce, EEOC Appeal No. 0120073252 (Oct. 11, 2007);
Devereux v. U.S. Postal Serv., EEOC Request No. 05960869 (Apr. 24, 1997).
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0320110030
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110030