Jake H.,1 Petitioner,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

2019000972 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jake H.,1
Petitioner,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Petition No. 2019000972

MSPB No. SF-1221-19-0044-W-1

DECISION

On November 15, 2018, Petitioner filed a petition with the Equal Employment Opportunity
Commission seeking review of a Final Order issued by the Merit Systems Protection Board
(MSPB) regarding MSPB No. SF-1221-19-0044-W-1. For the reasons that follow, we DENY
consideration of Petitioner’s petition, and REMAND this matter to the Agency for further
processing.
BACKGROUND

In pertinent part, the record indicates that, on November 15, 2018, an MSPB Administrative
Judge issued an initial decision that dismissed Petitioner’s appeal regarding his allegation that
the Agency retaliated against him in violation of the Whistleblower Protection Act (WPA)
because the MSPB lacked jurisdiction over the matter.

ANALYSIS AND FINDINGS

EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and
complaints on which the MSPB has issued a decision that makes determinations on allegations of
discrimination. 29 C.F.R. § 1614.303 et seq. However, when the MSPB, as it did here, denies
jurisdiction, the Commission has held that there is little point in continuing to view the matter as
a “mixed case” as defined by 29 C.F.R. § 1614.302(a), because the MSPB did not address any
matters within the Commission’s jurisdiction. Therefore, the Commission finds that it has no

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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jurisdiction to review Petitioner’s petition. Moreover, we note that Petitioner is alleging
violations of the WPA. The Commission has previously held that whistleblower activities are
generally outside the purview of the EEO process. See Giannu v. Department of Housing and
Urban Development, EEOC Request No. 05880911 (February 13, 1989).

The MSPB’s final decision indicated, however, that Petitioner’s whistleblower activity may also
have involved allegations of employment discrimination. In this regard, we note the MSPB’s
determination that, “[t]o the extent the appellant is arguing that the agency discriminated and
retaliated against him based on the grounds listed in 5 U.S.C. § 2302(b)(1), the Board does not
have jurisdiction over such claims in the absence of an appealable action.” Because of the
possibility that Petitioner may have also raised an allegation of employment discrimination
pursuant to our statutes, we will refer SF-1221-19-0044-W-1 to the Agency for further
processing as outlined below. Accordingly, Petitioner’s request for review is DENIED and
Petition No. 2019000972 is hereby closed.

ORDER

Petitioner is advised by operation of 29 C.F.R. § 1614.302(b) that the Agency, if it has not
already done so, is required to process his allegation of discrimination. The Agency, pursuant to
29 C.F.R. § 1614.105 et seq, shall notify Petitioner of the right to contact an EEO counselor
within forty-five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29
C.F.R § 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be
deemed the date of initial contact with the EEO counselor.

A copy of the notification shall be provided to the Compliance Officer listed below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
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on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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

November 29, 2018
Date