0320160048
06-30-2016
Rusty C.,1 Petitioner, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rusty C.,1
Petitioner,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320160048
MSPB No. NY-4324-14-0152-I-1
DECISION
On June 17, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission seeking review of the Final Decision issued by the Merit Systems Protection Board (MSPB) regarding MSPB No. NY-4324-14-0152-I-1. For the reasons that follow, we DENY consideration of Petitioner's petition.
BACKGROUND
Petitioner worked as a Supervisory Training Officer at the Agency's St. Albans Community Living Center in Jamaica, New York. Petitioner alleged that the Agency discriminated against him when on he was not selected for a Supervisory Police Officer position, on or around January 13, 2014.
On January 28, 2014, Petitioner filed an appeal before the MSPB, alleging that the Agency violated his rights under the Uniform Services Employment and Reemployment Rights Act (USERRA), and the Veterans Employment Opportunities Act (VEOA). He also alleged that he was discriminated against him on the bases of race (unknown), national origin (unknown), sex (unknown), disability (unknown), and reprisal for prior protected EEO activity. On October 22, 2015, the MSPB issued an initial decision, finding that Petitioner had waived his right to a hearing when he untimely requested a hearing, and dismissed his appeal. The MSPB AJ found that while the MSPB generally lacks jurisdiction over a non-selection claim, Petitioner had established jurisdiction through the VEOA and USERRA. However, the MSPB AJ found that Petitioner did not meet his burden of showing that he was entitled to corrective action under the provisions of the VEOA or USERRA.
Petitioner requested a petition for review of the initial decision, and on April 12, 2016, the MSPB issued a decision vacating the initial decision, and remanding Petitioner's case. The MSPB found that Petitioner had not waived his right to a hearing because the initial acknowledgment order, informing him that he needed to request a hearing within ten calendar days, had not been mailed to his address of record. While the MSPB AJ determined that Petitioner's request for a hearing was untimely, the MSPB found that the misdirected mailing weighed in favor of waiving the filing deadline.
An MSPB AJ issued a decision dismissing Petitioner's appeal because the parties reached a settlement agreement; the MSPB's decision became final on June 16, 2016. Petitioner then filed the instant petition with the Commission.
ANALYSIS AND FINDINGS
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 for being settled by the parties. 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. Consequently, the Commission will DENY consideration of 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. 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
_6/30/16_________________
Date
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.
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