0320160070
10-03-2016
Xavier P.,1 Petitioner, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Xavier P.,1
Petitioner,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Petition No. 0320160070
MSPB No. DA-0752-16-0048-I-1
DENIAL OF CONSIDERATION
On September 6, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a final decision issued by the Merit Systems Protection Board (MSPB) concerning his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner filed a mixed case complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when, effective June 20, 2014, he was removed from his position of Aircraft Mechanic, WG-8852-10. On January 29, 2015, the Agency issued a final decision finding no discrimination and advising Petitioner of his right to appeal the matter to the MSPB within 30 days of receipt of the final decision. On October 23, 2015, Petitioner appealed the matter to the MSPB.
On January 29, 2016, an MSPB Administrative Judge (AJ) issued an initial decision dismissing Petitioner's appeal as untimely filed without a showing of good cause for delay. Subsequently, Petitioner filed a petition for review by the full Board. On August 19, 2016, the Board issued a final order denying Petitioner's petition and affirming the MSPB AJ's initial decision. Petitioner then filed the instant petition.
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. Here, the MSPB dismissed Petitioner's appeal of his mixed case complaint on procedural grounds. The Commission has no jurisdiction over procedural matters decided by the MSPB. Because the MSPB 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 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
__10/3/16________________
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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