[Redacted], Maricruz Y., 1 Petitioner,v.Kevin Shea, Acting Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Feb 24, 2021

Petition No. 2021001611 (E.E.O.C. Feb. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maricruz Y.,1 Petitioner, v. Kevin Shea, Acting Secretary, Department of Agriculture (Forest Service), Agency. Petition No. 2021001611 MSPB No. DE-0752-20-0087-I-1 DENIAL OF CONSIDERATION On December 23, 2020, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to the underlying complaint, Petitioner worked as a Supply Technician, GS-2005-07, at the Agency’s Forest Service, Northern Region facility in Missoula, Montana. Petitioner filed a mixed-case complaint alleging that the Agency discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO activity when the Agency removed her from federal service, effective May 30, 2019. The Agency issued a decision finding that Petitioner was not discriminated against as alleged. Thereafter, Petitioner filed an appeal with the MSPB and an MSPB Administrative Judge (AJ) issued a decision upholding Petitioner’s removal. EEOC regulations provide that the Commission has jurisdiction over mixed-case complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. 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. 2 2021001611 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). According to the Initial Decision, dated November 24, 2020, the MSPB AJ noted that there was only one member of the Board at that time, and that the Board therefore lacked quorum. The AJ further noted that, due to the lack of quorum, the MSPB could not issue decisions on petitions for review at that time, a situation that is ongoing. Thereafter, Petitioner filed the instant petition with the Commission. However, by letter dated February 16, 2021, the MSPB informed the Commission that Petitioner chose to seek review with the Board and that the matter is still pending before the MSPB. As this matter is currently before the MSPB, Petitioner can only seek review once a final decision has been issued by the Board, notwithstanding the Board’s current lack of quorum. Because Petitioner appealed the Agency’s final decision to the MSPB and the matter is still pending before the Board, Petitioner’s request for review is DENIED and Petition No. 2021001611 is hereby administratively closed. However, when the MSPB issues a final order on Petitioner’s petition for review, she may petition the Commission for review of the MSPB decision in accordance with 29 C.F.R. §1614.303. 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. 3 2021001611 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 February 24, 2021 Date