[Redacted], Edgardo D., 1 Petitioner,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Petition No. 2021003557 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edgardo D.,1 Petitioner, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Petition No. 2021003557 MSPB No. PH-1221-21-0123-W-1 DENIAL OF CONSIDERATION On May 14, 2021, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a final decision issued by the Merit Systems Protection Board (MSPB or Board) concerning his individual right of action (IRA) case alleging disparate treatment/impact based on his status as a union representative and reprisal for whistleblowing. For the following reasons, we DENY the petition for review. Here, the record reflects that the MSPB Administrative Judge (AJ) issued an initial decision on March 26, 2021, dismissing Petitioner’s IRA for lack of jurisdiction. In dismissing the appeal, the MSPB AJ informed Petitioner that the initial decision would become final on April 30, 2021, unless Petitioner filed a petition for review with the full Board. The MSPB AJ also advised Petitioner that “if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination…you may request review by the Equal Employment Opportunity Commission of your discrimination claims only” by filing a petition via regular U.S. mail within thirty (30) calendar days of the date when the initial decision became final. The MSPB AJ correctly provided Petitioner the Commission’s mailing address as “P.O. Box 77960, Washington, D.C. 20013.” Because Petitioner did not ultimately file a petition for review with the full Board, the initial decision became the final decision of the MSPB on April 30, 2021. 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. 2021003557 2 Thus, for Petitioner’s EEOC petition to be timely, he needed to file his petition, on or before Monday, May 31, 2021. However, Petitioner filed his petition on June 4, 2021, after the expiration of the regulatory filing period. In his petition, Petitioner asserts that he tried to file his petition via the EEOC Public Portal; however, his attempts failed because the EEOC Public Portal asked him for his EEOC appeal number, which he did not have. He claims that due to his inability to file his petition, he contacted the Agency’s EEO Office on June 1, 2021, to file a new informal EEO complaint. Petitioner strenuously maintains that he is seeking EEOC review because he believes that the Agency “discriminated, retaliated, and reprised against [him]” for serving as a union representative and for blowing the whistle on the Agency. Petitioner further maintains that the Agency “treat[ed] [him] with disparate impact; by treating [him] as a union representative, in a separate manner without equal protected under the law and due process.” The Agency opposes the petition and requests that the Commission dismiss the petition as untimely. While we acknowledge that there is a dispute concerning the timeliness of the petition, we nevertheless decline to review the petition due to our lack of jurisdiction over the matter. In this regard, our regulations provide that the Commission has jurisdiction over allegations of discrimination raised in connection with an action appealable to the MSPB. 29 C.F.R. § 1614.302. However, the Commission has no jurisdiction over procedural matters decided by the MSPB, where, as is the case here, the MSPB found that it lacked jurisdiction. Because the MSPB found that it lacked jurisdiction to review Petitioner’s IRA, the Commission, in turn, has no jurisdiction to review Petitioner’s IRA. Consequently, we DENY the petition for review. See Oslowski v. U.S. Postal Serv., EEOC Petition No. 03A00132 (Oct. 31, 2000). 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. 2021003557 3 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 Petitioner’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 July 19, 2021 Date