[Redacted], Phyllis G., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 19, 2022

Petition No. 2022005115 (E.E.O.C. Oct. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Phyllis G.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Petition No. 2022005115 MSPB No. PH-1221-22-0086-W-I DENIAL OF CONSIDERATION On September 12, 2022, 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) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we DENY the petition. Petitioner filed a complaint with the Office of Special Counsel (OSC), alleging that the Agency discriminated against her when it demoted and harassed her, denied her reasonable accommodation, and constructively terminated her by failing to provide her with reasonable accommodation. Following the dismissal of her OSC complaint, Petitioner filed an individual right of action (IRA) appeal with the MSPB. On July 26, 2022, the assigned MSPB AJ held a conference with the parties to discuss the matter. During the conference, the parties asked the MSPB AJ to hold the matter in abeyance, as Petitioner’s application for full disability benefits was pending with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). The MSPB AJ ultimately agreed to suspend the matter because the MSPB AJ found that a favorable OWCP decision could potentially resolve the appeal. Later that day, the MSPB AJ issued an initial decision, formally dismissing the matter without prejudice on the grounds of administrative efficiency. 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. 2022005115 2 In issuing the initial decision, the MSPB AJ expressly informed Petitioner that she could refile the appeal “no sooner than when the [Petitioner] receives a decision from OWCP, and the appeal will be automatically refiled no later than November 7, 2022.” The initial decision became the final decision of the MSPB on August 30, 2022. Petitioner then filed the instant petition with the Commission on September 12, 2022. In her petition, Petitioner largely reiterates her prior allegations that the Agency subjected her to discrimination when it demoted and harassed her, denied her reasonable accommodation, and constructively terminated her by failing to provide her with reasonable accommodation. 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. We find that we do not have jurisdiction to review the petition. In this regard, our review of the record clearly shows that the MSPB AJ denied Petitioner’s appeal without prejudice and informed Petitioner that the MSPB would automatically refile the appeal no later than November 7, 2022. As the matter is still pending with the MSPB, we DENY consideration of the petition and shall administratively close Petition No. 2022005115. See Stefan H. v. Dep’t of Health and Human Servs., EEOC Petition No. 2021001804 (Mar. 18, 2021) (dismissing petition on same grounds as instant petition). 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. 2022005115 3 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 October 19, 2022 Date