0320180062
08-09-2018
Kennith M.,1 Petitioner, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kennith M.,1
Petitioner,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Petition No. 0320180062
MSPB No. DA-0752-17-0423-A-1
DECISION
On July 9, 2018, 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) on June 13, 2018. For the reasons set forth in this decision, we CONCUR with the MSPB's decision.
BACKGROUND
On April 27, 2018, Petitioner filed a motion for attorney fees incurred in connection with the appeal of his removal. On June 21, 2017, the Agency notified Petitioner of its decision to remove him from his position as an IT Specialist (Systems Analysis/Network Services). He filed an appeal to the MSPB alleging, among other things, discrimination based disability. After a hearing, an initial decision was issued affirming the Agency's removal and finding no discrimination. Petitioner filed a petition with the Commission asking for a review of the initial decision with regard to his discrimination claim. On July 17, 2018, the Commission issued a decision that concurred with the MSPB determination of no disability discrimination. See Kennith M. v. Dep't of the Army, EEOC Petition No. 0320180046 (Jul. 17, 2018).
In the present matter, Petitioner filed a petition with the MSPB for attorney's fees and costs on April 27, 2018, in the amount of $9,508.50. The MSPB's final decision denied his petition after determining that he was not a prevailing party with respect to the appeal of his removal. Subsequently, Petitioner filed the instant petition for review.
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 allegations 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. 29 C.F.R. � 1614.305(c).
As stated in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MP-110), "[I]n federal EEO law, there is a strong presumption that a complainant who prevails in whole or in part on a claim of discrimination is entitled to an award of attorney's fees and costs. More specifically, complainants who prevail on claims alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation Act of 1973, as amended, are presumptively entitled to an award of attorney's fees and costs . . . ." EEO MD-110, at Chap. 11 � VI A (Aug. 5, 2015).
As the record indicates, however, Petitioner did not prevail in whole or in part on his discrimination claim either before the MSPB or subsequently on appeal to the EEOC. Consequently, he did not establish that he was entitled to attorney's fees or cost. Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
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
__8/9/18________________
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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