0320090032
03-17-2009
Lawrence V. Wilder, Petitioner, v. Christopher Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.
Lawrence V. Wilder,
Petitioner,
v.
Christopher Scolese,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.
Petition No. 0320090032
MSPB No. DC-3443-08-0176-I-1
DECISION
On January 30, 2009, the Equal Employment Opportunity Commission (EEOC or
Commission) received petitioner's petition asking for review of a Final
Order dated August 6, 2008, by the Merit Systems Protection Board (MSPB)
concerning his claims 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. 1
Petitioner alleged that he was discriminated against based on his race,
sex and color (African-American male) regarding:
1. his resignation from the agency effective April 1, 1988,
2. the agency denying his request to inspect and correct system personnel
files,2
3. being informed on January 3, 2008 by an agency attorney that the
agency lost his work history system files, and
4. his proposed removal, disability retirement, and purported denial of
restoration rights, some or all these actions taken by other agencies.
The MSPB's initial decision dismissed claim 1 for being untimely appealed
to the MSPB.3 It dismissed claims 2 and 3 for lack of jurisdiction.4
It dismissed claim 4 on the grounds that these matters were already
litigated it before the MSPB. Petitioner filed a petition for review of
the initial decision, which the Board's final order denied. Neither the
initial decision nor the final order gave petitioner appeal rights to
the Commission. Nevertheless, petitioner filed a petition for review
with the Commission.
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 MSPB made no determinations on allegations of discrimination.
In light of this, we dismiss his petition for review.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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 (Z1008)
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
March 17, 2009
__________________
Date
1 Petitioner's petition packet contained other petition numbers.
The Commission docketed all the petition numbers under EEOC
Petition number 0320090032. The other docketed petition numbers
were PH-0839-08-0453-I-1; PH-0353-07-0330-I-1; PH-1221-08-0452-W-1;
PH-844E-08-0524-I-1; DC-3443-08-0535-I-1, and PH-0353-08-0321-I-1.
These petitions were from separate MSPB final orders (except consolidated
MSPB numbers PH-1221-08-0452-W-1 and PH-844E-08-0524-I-1), which are
being separately docketed.
2 Petitioner had e-mail correspondence with the agency in November and
December 2007. In the e-mails, he referenced an alleged denial of a
Freedom of Information Act (FOIA) request, and requested a "correction"
of his official personnel file (OPF), stating he was forced to resign.
The file contains a letter by petitioner resigning from the agency
effective April 1, 1988, to seek job experience in his field of study.
3 Petitioner previously filed an EEO complaint on the same claim, i.e.,
alleging race, sex and color discrimination when he resigned from the
agency on Augusts 1, 1988, rather than being terminated. The Commission
affirmed a final agency decision dismissing the complaint on the grounds
that petitioner failed to timely initiate contact with an EEO counselor.
Wilder, Sr. v. National Aeronautics and Space Administration, EEOC Appeal
No. 0120073768 (November 9, 2007), request for reconsideration denied,
EEOC Request No. 0520080188 (January 14, 2008).
4 We note that claims 2 and 3 appear to be an attempt to relitigate
claim 1. These claims go to his effort to have his departure from the
agency characterized as a termination rather than a resignation. Further,
we note that the Commission does not have enforcement authority over
the FOIA. Gaines v. Department of the Navy, EEOC Request No. 05970321
(June 12, 1997).
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0320090032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090032