[Redacted], Theo B., 1 Petitioner,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Oct 14, 2021

Petition No. 2021004521 (E.E.O.C. Oct. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theo B.,1 Petitioner, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Petition No. 2021004521 MSPB No. 4C-080-0174-18 DENIAL OF CONSIDERATION On March 13, 2018, Petitioner filed an appeal with the Merit Systems Protection Board (MSPB) challenging the determination of the Agency that there was no work available.2 By initial decision dated July 11, 2018, the MSPB ordered the Agency to restore Petitioner to his limited duty assignment, or an equivalent assignment, to pay him back pay, and to restore his benefits, retroactive to November 27, 2017. The initial decision became final on August 15, 2018. On October 29, 2018, Petitioner filed his first Petition for Enforcement (PFE) in which he asserted that he had not received the back pay to which he was entitled. By July 29, 2019, the MSPB determined that all compliance issues had been resolved and Petitioner’s PFE was denied by Initial Decision on August 8, 2019. This decision became final on September 13, 2019. During this same time, Petitioner filed an EEO complaint on November 20, 2018, alleging disability discrimination and retaliation for prior EEO activity when on July 24, 2018, management did not retroactively reinstate him to his former position. Following the investigation, Petitioner requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (EEOC AJ). On September 3, 2020, the EEOC AJ dismissed the matter finding that Petitioner was using the EEO complaint process to lodge a collateral attack on another proceeding, namely the remedies ordered in the MSPB Initial Decision dated 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 The record indicates that Petitioner withdrew his affirmative defense of disability discrimination. 2021004521 2 July 11, 2018. The Agency issued its final action on September 10, 2020, adopting the dismissal. In Theo B. v. U.S. Postal Serv., EEOC Appeal No. 2021000217 (Jan. 22, 2021), the Commission affirmed the Agency’s final action. On February 22, 2021, Petitioner filed a second PFE, raising the same matter with the MSPB. The MSPB Administrative Judge (MSPB AJ) determined that Petitioner could have raised the issues in the earlier PFE and chose not to. Accordingly, the MSPB AJ issued an Initial Decision dated June 16, 2021, which denied Petitioner’s PFE under the doctrine of res judicata. On August 9, 2021, Petitioner filed the instant petition with the Commission asking for review of the Initial Decision issued by the MSPB AJ. EEOC Regulations provide that the Commission has jurisdiction over allegations of discrimination raised in connection with an action appealable to the MSPB. See 29 C.F.R. §1614.302. Because the MSPB did not address any matters within the Commission’s jurisdiction, the Commission has no jurisdiction to review MSPB AJ’s Initial Decision. The Commission has no jurisdiction over the MSPB determination that the matters are res judicata. Consequently, the Commission denies 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. 2021004521 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: ______________________________ Office of Federal Operations October 14, 2021 Date