0320180020
01-04-2018
Marcel M.,1 Petitioner, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marcel M.,1
Petitioner,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Petition No. 0320180020
MSPB No. DE-315H-17-0375-I-1
DECISION
On December 6, 2017, 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 his appeal challenging his April 30, 2017 removal during his probationary period. In his appeal, Petitioner alleged that the Agency engaged in "harmful procedural error," not discrimination. The final order dismissed the appeal for lack of jurisdiction because Petitioner did not meet the definition of an employee.
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. In such cases, the Commission must determine whether the decision of the MSPB with respect to the allegation 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).
Here, the MSPB did not make a determination on the merits of any allegations of discrimination under the federal laws which the Commission enforces. 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 will DENY consideration of the petition for review. 2
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
__1/4/18________________
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.
2 Petitioner also filed an EEO complaint on his termination. On June 23, 2017, the Agency issued a final decision dismissing his complaint. Petitioner's appeal of the Agency's dismissal of his complaint is currently pending before the Commission in EEOC Appeal No. 0120180244.
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