0320160039
05-13-2016
Rayford H.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rayford H.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320160039
MSPB No. SF0752140025C1
DENIAL OF CONSIDERATION
On May 9, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner worked as a Program Manager at the Agency's Customs and Border Protection facility. Petitioner filed a mixed case appeal alleging that the Agency discriminated against him on the bases of national origin (Iraqi), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was removed from his position on January 31, 2013 for an inability to pass the background investigation and obtain the necessary security clearance.
A hearing was held, and the MSPB Administrative Judge (AJ) issued a decision, without addressing the merits, reversing the removal action after finding that the Agency had not afforded Petitioner due process. Petitioner subsequently filed a petition for enforcement contending that the Agency failed to make the appropriate adjustments to his Thrift Savings Plan, improperly deducted a lump sum from his back pay for restoration of his annual leave, and did not allow him to enroll in health insurance. Based on the record, the AJ issued an initial compliance decision on September 2, 2015 finding that although the Agency was not in compliance, Petitioner did not rebut the Agency's evidence of its eventual compliance.
The AJ advised that the initial compliance decision would become final on October 7, 2015 unless either party filed a petition for review. Petitioner filed an untimely petition for review on October 20, 2015. The AJ dismissed the petition as untimely in a decision dated April 5, 2016. The AJ found that Petitioner's reason for being untimely, i.e., that he learned of a new investigation of him by the Agency did not constitute a reasonable excuse for his 13-day delay in filing the petition for review.
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 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, instead the AJ reversed the Agency's actions based on due process grounds, and made subsequent procedural determinations. 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 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
__5/13/16________________
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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