0320160036
04-27-2016
Karan F.,1 Petitioner, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karan F.,1
Petitioner,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320160036
MSPB No. DC-0752-16-0241-I-1
DECISION
On April 12, 2016, 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) concerning her 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. For the following reasons, we DENY Petitioner's petition for review.
BACKGROUND
Petitioner worked as a Real Estate Specialist at the Agency's Naval Facilities Command Europe Africa Southeast Asia in Napoli, Italy. On September 29, 2014, the Agency decided not to extend Petitioner's overseas appointment and informed her that her tour would expire on March 28, 2015. The Agency made efforts to find her a position through the Department of Defense Priority Placement Program (PPP) and on July 31, 2015, it notified Petitioner that she was qualified for a Realty Specialist position with the Department of the Army in New York. On August 10, 2015, Petitioner submitted a written acceptance of the position, with a start date of November 1, 2015.
On October 22, 2015, Petitioner withdrew her acceptance of the position and notified the Agency of her retirement, effective December 31, 2015. On October 30, 2015, the Agency issued Petitioner a Notice of Proposed Removal notifying her that it planned to remove her in light of a valid job offer under the PPP, after the expiration of her overseas appointment. The Agency decided to remove Petitioner on November 13, 2015, with an effective date of December 4, 2015. Between the time of the notification of her removal and the effective date, Petitioner retired on November 30, 2015.
On December 18, 2015, Petitioner appealed her removal to the MSPB, alleging that she was discriminated against on the basis of reprisal for prior protected EEO activity. On January 11, 2016, the Agency filed a Motion to Dismiss arguing that the MSBP did not have jurisdiction because Petitioner voluntarily resigned. On February 24, 2016, the MSPB Administrative Judge (AJ) issued a Jurisdiction Order informing Petitioner of the steps she needed to take to establish MSPB jurisdiction. Petitioner did not respond to the order and on March 17, 2016, the AJ issued an Initial Decision dismissing Petitioner's appeal for lack of jurisdiction, which became final on April 21, 2016.
The AJ found that the Agency cancelled Petitioner's removal before she filed her appeal. The AJ determined that Petitioner's personnel file did not contain a removal action and that the last entry was her voluntary retirement on November 30, 2015. Accordingly, the AJ held that the MSPB lacks jurisdiction to consider this case as an appeal from the Agency's decision to remove Petitioner.
Additionally, the AJ held that Petitioner did not show that her retirement was involuntary or coerced. The AJ noted that Petitioner emailed a representative in the Office of Human Rights asking if it would be more beneficial to retire before the effective date of her removal. After receiving answers and options, Petitioner decided to change her retirement date from December 31, 2015, to November 30, 2015. The AJ concluded that since Petitioner did not establish MSPB jurisdiction over her removal action, and had not demonstrated that her retirement was involuntary, the MSPB did not have jurisdiction over the appeal and granted the Agency's motion to dismiss.
Petitioner then filed the instant petition but did not provide any arguments in support of her petition.
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. 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 jurisdiction to review Petitioner's petition. This matter will be considered a "non-mixed" case and processed accordingly. See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner's request for review is DENIED and Petition No. 0320160036 is hereby administratively closed. MSPB No. DC-0752-16-0241-I-1 is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process the allegations of discrimination pursuant to 29 C.F.R. � 1614.105 et seq. The Agency 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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 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 Petitioner'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
__4/27/16________________
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.
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