0320140045
10-29-2014
Petitioner, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Petitioner,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Petition No. 0320140045
MSPB No. SF-3443-14-0222-I-1
DECISION
On April 22, 2014, 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). For the reasons that follow, we DENY consideration of Petitioner's petition and REMAND this matter to the Agency for further processing.
BACKGROUND
In pertinent part, the record indicates that Petitioner is employed as a Geologist, GS-1350-11, with the Forest Service, Pacific Northwest Region, Okanogan-Wenatchee National Forest, Tonasket Washington. She filed a formal complaint of discrimination on July 22, 2013 alleging the Agency had discriminated against her on the basis of her sex by issuing her a letter of instruction and directing her to perform tasks below her grade level. On December 5, 2013, the Agency issued Petitioner a performance rating for fiscal year 2013, rating her as fully successful but noting she had not met various performance elements, and notifying her that she was expected to show improvement within the next 60 days. On January 2, 2014, Petitioner filed an appeal with the MSPB alleging the Agency had retaliated against her for prior EEO activity when it rated her fully successful and advised her that she needed to improve her performance or face termination. Subsequently, an MSPB Administrative Judge dismissed her appeal for lack of jurisdiction.1 Petitioner filed the instant petition seeking a review of the MSPB's final decision.
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. However, when the MSPB, as it did in this case, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a), because the MSPB did not address any matters within the Commission's jurisdiction. Therefore, the Commission finds that it has no jurisdiction to review Petitioner's petition. This matter will be considered a "non-mixed" case and processed accordingly. See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petition No. 0320140045 is hereby administratively closed, and the matter is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process the allegations of discrimination pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall notify Petitioner of the right to contact an EEO counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R � 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor.
A copy of the notification shall be provided to the Compliance Officer listed below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Z0610)
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
___10/29/14_______________
Date
1 The Administrative Judge noted that a performance appraisal rating is not included within the list of Agency actions over which the Board has jurisdiction
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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