0320090070
08-18-2009
Lawrence V. Wilder, Petitioner, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Lawrence V. Wilder,
Petitioner,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 0320090070
MSPB No. PH3443090131I1
DENIAL OF CONSIDERATION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a Final Order issued by the Merit
Systems Protection Board (MSPB) concerning his 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner alleged that he was discriminated against on the bases of
race (African-American), sex (male), color (Black), and disability
(psychiatric) when he was subjected to a reassignment by the agency.
An MSPB Administrative Judge (AJ) issued an initial decision dismissing
the matter. The AJ noted that although petitioner alleged he was given a
directed reassignment in 2006, the reassignment had, in fact, taken place
in 1997 at the latest, and petitioner had been removed from the agency in
1997. The AJ also noted that the Board had recognized that petitioner was
removed in 1997 in previous decisions, and that no reassignment had taken
place in 2006 as alleged by petitioner. The AJ found that petitioner's
appeal to the Board was untimely regarding any reassignment or demotion.
The AJ also found that petitioner did not raise a non-frivolous claim
under the Whistleblowers Protection Act. Petitioner sought review by the
full Board which denied his request. Petitioner then filed the instant
petition, but did not make any arguments in his petition.
EEOC regulations provide that the Commission has jurisdiction over
allegations of discrimination raised in connection with an action
appealable to the MSPB. 29 C.F.R. � 1614.302. Here, the MSPB dismissed
the appeal on the basis of the untimely filing of the appeal among other
reasons. The Commission has no jurisdiction over procedural matters
of the Board. Because the MSPB did not address any matters within the
Commission's jurisdiction, the Commission has no jurisdiction to review
petitioner's case. Consequently, the Commission denies the 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
August 18, 2009
__________________
Date
2
0320090070
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320090070