Thomas M. Burch, Petitioner,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 5, 2009
0320090049 (E.E.O.C. May. 5, 2009)

0320090049

05-05-2009

Thomas M. Burch, Petitioner, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Thomas M. Burch,

Petitioner,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Petition No. 0320090049

MSPB No. DE-0752-06-0538-P-1

DECISION

On April 10, 2008, petitioner filed a timely petition with the Equal

Employment Opportunity Commission (EEOC or Commission) asking for review

of a initial decision of the Merit Systems Protection Board (MSPB),

which became final on March 12, 2008, concerning his claim that the MSPB

improperly denied his claim for compensatory damages.

The MSPB ruled that petitioner was discriminated against based on

reprisal for prior EEO activity when he was removed effective September

1, 2006. Burch v. Department of Homeland Security, docket number

DE-0752-06-0538-I-1, 2007 WL 933380 (initial decision) (January 20,

2007); petition for review denied (final order) (September 21, 2007).

Thereafter, petitioner filed a motion for compensatory damages. In an

initial decision, which became final, the MSPB denied the motion.

It found that petitioner's prior EEO activity exclusively alleged

a violation of the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq. Specifically, it found

that petitioner filed a formal complaint dated May 11, 2006, alleging

only age discrimination, and that he amended the complaint on June 19,

2006, alleging reprisal discrimination for requesting mediation [on

the matter giving rise to the complaint]. It added that the agency

issued letters to petitioner accepting the complaint, and its amendment

thereto, and he did not further amend it to add a claim under Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

In its decision denying petitioner's motion for compensatory damages,

the MSPB reasoned that there is no entitlement to damages under the ADEA.

This decision gave petition rights to the EEOC, and petitioner filed

the instant petition.

On petition, petitioner concedes that there is no entitlement to

compensatory damages in the administrative process under the ADEA.

This is consistent with Commission precedent. See Falks v. Department

of the Treasury, EEOC Appeal No. 05960250, EEOC Appeal No. 05960250,

1996 WL 528997 (September 5, 1996). This includes a claim of reprisal

for EEO activity based on an ADEA claim. Id. Petitioner argues, as he

did with the MSPB following his motion for compensatory damages, that his

prior EEO activity was based age and the Title VII claim of sex (male).

He points to a letter by the EEO counselor, acknowledging his request for

mediation, which states petitioner raised sex and age discrimination in

a conversation with the EEO counselor on January 24, 2006. The letter

was copied to an unspecified agency contact.

There was no indication in petitioner's underlying MSPB claim challenging

the removal that he was alleging anything but prior ADEA EEO activity.

In his underlying claim petitioner submitted the acceptance letters

which indicated ADEA EEO activity, and testified that his case was filed

based on age discrimination. The deciding official on the removal, who

attended the mediation, testified in the underlying MSPB claim that he

believed petitioner's EEO case was based on age.

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a decision that makes

determinations on allegations of discrimination. 29 C.F.R. � 1614.303

et seq. 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). The Commission has jurisdiction to review

whether a petitioner is entitled to have his claim for compensatory

damages considered before the MSPB under Title VII. Sloan v. United

States Postal Service, EEOC Petition No. 03940166, 1995 WL 62723

(February 9, 1995); Martin v. Department of the Air Force, EEOC Petition

No. 03960020, 1996 WL 506226 (August 29, 1996).

We decline to find that the MSPB made an incorrect interpretation of fact

or law. First, in petitioner's underlying MSPB claim challenging the

removal based on reprisal, petitioner only raised prior ADEA EEO activity.

Next, the deciding official believed petitioner's EEO case was based on

age discrimination, and this was consistent with petitioner's actions.

Based upon a thorough review of the record, it is the decision of

the Commission to concur with the final decision of the MSPB finding

no discrimination. The Commission finds that the MSPB's decision

constitutes a correct interpretation of the laws, rules, regulations,

and policies governing this matter and is supported by the evidence in

the record as a whole.

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 5, 2009

__________________

Date

2

0320090049

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0320090049