0320160015
01-28-2016
Mao P.,1 Petitioner, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mao P.,1
Petitioner,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 0320160015
MSPB No. CH-0752-15-0485-I-1
DECISION
On December 14, 2015, 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 an Administrative Support Assistant at the Agency's facility in Rock Island, Illinois. Petitioner alleged that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when it removed her in January 2013, and subjected her to a hostile work environment.
Petitioner filed a formal EEO complaint and the Agency issued a final decision finding no unlawful employment discrimination. The Agency issued and mailed the final decision on February 6, 2015, which Petitioner received on April 22, 2015.
Petitioner filed an appeal with the MSPB on May 20, 2015. The MSPB Administrative Judge (AJ) issued an order advising Petitioner that her appeal appeared untimely and instructed her to show that her appeal was timely filed or that there was good cause for its untimeliness. The AJ also instructed the Agency to submit evidence pertaining to Petitioner's timeliness and the Agency presented evidence that it mailed the final decision to Petitioner's address of record and that she failed to claim it, despite repeated notices. Petitioner did not respond to the order and the AJ dismissed the appeal. Petitioner then filed a petition for review with the Full Board.
In her petition, Petitioner concedes that the Agency mailed the final decision on February 6, 2015, to the proper address but that its delivery was delayed due to a mistake by the U.S. Postal Service. The Full Board decided not to address this argument because it was raised for the first time in the petition for review. Accordingly, the MSPB affirmed the dismissal of Petitioner's appeal as untimely filed, without good cause shown for delay, in the Final Order dated November 6, 2015.
Petitioner then filed the instant petition with the Commission on December 14, 2015.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. Here, the MSPB dismissed Petitioner's appeal for being untimely. The Commission has no jurisdiction over these types of procedural determinations by the MSPB. Because the MSPB's decision did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's case. Consequently, the Commission will DENY consideration of the petition for review.
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
__1/28/16________________
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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2
03-2016-0015
2
0320160015