0320150050
08-31-2015
Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Petition No. 0320150050
MSPB No. CH-0752-13-4055-I-1
DENIAL OF CONSIDERATION
On March 26, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a February 25, 2015 final decision issued by the Merit Systems Protection Board (MSPB). On August 13, 2013, Petitioner filed an appeal with the MSPB challenging his July 17, 2013 removal for careless or negligent performance of duty.
On January 15, 2014, an MSPB Administrative Judge (AJ) issued an order and summary of prehearing conference. According to the MSPB AJ's summary, Petitioner did not raise any allegations of discrimination as an affirmative defense. The record reflects that Petitioner did not object to the MSPB AJ's order and summary. On April 24, 2014, after a hearing, the MSPB AJ issued an initial decision sustaining the removal. The MSPB AJ did not make any determinations on allegations of discrimination and did not give Petitioner further review rights to the Commission.
Petitioner then filed a petition for review by the full Board. On February 25, 2015, the Board issued a final order denying Petitioner's petition and affirming the MSPB AJ's initial decision. The Board noted that Petitioner raised an allegation of disability discrimination in his petition. However, citing the MSPB AJ's January 15, 2014 order and summary, the Board found that Petitioner did not raise such an allegation below. Therefore, the Board declined to consider Petitioner's allegation of disability discrimination because Petitioner raised it for the first time on review and did not show that it was based on new and material evidence not previously available despite his due diligence. The Board gave Petitioner further review rights to the Commission.
Petitioner then filed the instant petition. Among other things, Petitioner argued that the Agency did not fully consider his medical condition as a mitigating circumstance. In addition, Petitioner argued that the Agency's actions "appeared to be racial."
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. Here, the MSPB did not make a determination on the merits of any allegations of discrimination, but rather declined to address Petitioner's allegation of disability discrimination. 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.
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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton e
Carlton M. Hadden, Director
Office of Federal Operations
_8/31/15_________________
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