0320180050
05-29-2018
Melba G.,1 Petitioner, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melba G.,1
Petitioner,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180050
MSPB No. CH-0752-10-0712-1-1
DENIEL OF CONSIDERATION
On May 10, 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 May 14, 2014. For the reasons set forth in this decision, Petitioner's request is DENIED.
BACKGROUND
In June 2012, Petitioner filed an appeal with the MSPB alleging violations of the Veterans Employment Opportunities Act of 1998 (VEOA), and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when she was not selected by the Agency to fill several vacant positions. On May 14, 2014, an MSPB Administrative Judge issued a final decision that found that Petitioner did not establish that there were violations of her rights under either the VEOA or the USERRA. In her petition to the Commission, which was filed four years after the MSPB's final decision, Petitioner writes, in pertinent part, that:
I have been denied the opportunity to justifiably compete under merit promotion procedures (based on experience, education, competencies and performance) for vacant positions. I also qualify for several positions under the Office of Personnel Management (OPM) standards and special hiring authorities such as: 30 Percent or More Disabled Veterans, Veterans' Recruitment Appointment (VRA), Veterans Employment Opportunities Act of 1998 (VEOA), and Superior Academic Achievement (S.A.A.).
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).
In the present case, however, we find that the Commission has no jurisdiction in this matter because the MSPB has not addressed an allegation of discrimination for which the Commission has jurisdiction. The Commission has repeatedly held that, to the extent that a claim is based on veterans' status or preference, it does not come within the purview of the 29 C.F.R. Part 1614 EEO complaint process. Chaves v. EEOC, EEOC Petition No. 0320100050 (May 9, 2011); Rowe v. Department of Commerce, EEOC Appeal No. 0120073252 (October 11, 2007); Devereux v. United States Postal Service, EEOC Request No. 05960869 (April 24, 1997).
Accordingly, we DENY consideration of this petition, and find that EEOC Petition No. 0320180050 is hereby closed.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
___5/29/18_______________
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 Because we find that we have no jurisdiction over this matter, we do not find it necessary to address the timeliness of Petitioner's petition.
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