[Redacted], Kyoko H., 1 Petitioner,v.Barbara M. Barrett, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 6, 2019

Petition No. 2020000868 (E.E.O.C. Dec. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyoko H.,1 Petitioner, v. Barbara M. Barrett, Secretary, Department of the Air Force, Agency. Petition No. 2020000868 Agency No. 9H1C1800360 MSPB No. SF-0752-19-0465-I-1 DECISION On June 3, 2019, Petitioner filed an appeal with the Merit Systems Protection Board (MSPB) from the Agency’s May 9, 2019, decision on her mixed case complaint alleging that she involuntarily resigned from her position, effective April 18, 2018. On September 9, 2019, an MSPB Administrative Judge dismissed Petitioner’s appeal as untimely. Petitioner filed a petition with the Equal Employment Opportunity Commission (Commission) seeking review of the final decision of the MSPB. 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. Here, the MSPB dismissed Petitioner’s appeal as being untimely. The Commission has no jurisdiction over these types of procedural determinations by the MSPB. Because the MSPB’s decision did not address any matters within the Commission’s jurisdiction, the Commission has no jurisdiction to review Petitioner’s case.2 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. 2On March 16, 2018, Petitioner initiated contact with the Agency’s Equal Employment Opportunity (EEO) office and filed an informal complaint based on disability discrimination and reprisal. The Agency issued a notice of the right to file a formal complaint on June 14, 2018, which Petitioner acknowledged receiving. Petitioner filed a formal EEO complaint, dated February 1, 2019, which was received by the Agency on February 11, 2019. On May 9, 2019, the Agency issued the instant final decision dismissing the complaint as untimely. Like the MSPB Administrative Judge, we find that once the Agency dismissed Petitioner’s EEO complaint, she 2020000868 2 ORDER If it has not already done so, the Agency, within thirty (30) days of its receipt of this decision, shall reissue its May 9, 2019, final decision dismissing Petitioner’s February 1, 2019, EEO complaint and shall provide her with appeal rights to the EEOC, not the MSPB. A copy of the reissued final decision shall be provided to the Compliance Officer listed below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 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 should have been given appeal rights to the EEOC, not the MSPB, to determine whether the complaint was properly dismissed. 2020000868 3 (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 December 6, 2019 Date