0320160054
08-02-2016
Karlene P.,1 Petitioner, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karlene P.,1
Petitioner,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Petition No. 0320160054
MSPB No. AT-0752-16-0162-I-1
DENIAL OF CONSIDERATION
On July 13, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a decision issued by the Merit Systems Protection Board (MSPB) regarding MSPB No. AT-0752-16-0162-I-1.
On November 14, 2015, Petitioner filed a mixed case appeal alleging that the Agency discriminated against her when, in September 2015, it constructively removed her from the position of Supply Technician. On December 29, 2015, an MSPB Administrative Judge issued an initial decision dismissing Petitioner's appeal for lack of jurisdiction. Subsequently, Petitioner filed a petition for review with the U.S. Court of Appeals for the Federal Circuit. On June 16, 2016, the Court dismissed the petition for failure to prosecute in accordance with the rules. Petitioner then filed the instant petition.
When the MSPB denies jurisdiction in such matters, 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). Thus, the case will be considered a "non-mixed" matter and processed accordingly. See generally 29 C.F.R. � 1614.302(b); Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990). Here, Petitioner filed a mixed case appeal with the MSPB alleging constructive removal. The MSPB, however, dismissed Petitioner's mixed case appeal for lack of jurisdiction. Accordingly, Petition No. 0320160054 is hereby administratively closed, and the matter 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) that the Agency is required to process her allegations of discrimination as a "non-mixed" matter pursuant to
29 C.F.R. � 1614.105 et seq. The Agency shall promptly notify Petitioner in writing of the right to contact an EEO Counselor within forty five (45) days of receipt of the notice and to file an EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which Petitioner filed her appeal with the MSPB shall be deemed to be the date of initial contact with an EEO Counselor.
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 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
_8/2/16_________________
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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