0320120041
01-31-2013
Byron R. Thomas, Petitioner, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Byron R. Thomas,
Petitioner,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Petition No. 0320120041
MSPB No. AT-0752-10-0054-B-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC) asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
In September 2009, Petitioner was removed from his position for various instances of misconduct. He filed a timely appeal with the MSPB. On December 3, 2009, Petitioner's appeal was dismissed without prejudice with the understanding that he would file a disability retirement application with the Office of Personnel Management (OPM). On January 3, 2010, Petitioner filed a petition with the full Board to review the December 3rd dismissal. The matter was remanded to a MSPB AJ for a hearing on the merits on November 12, 2010. Before a hearing could be scheduled however, the parties discovered that, in June 2010, OPM had approved Petitioner's disability retirement application, retroactive to June 29, 2009, i.e., four months before his removal.
Upon learning of Petitioner's disability retirement, the MSBP AJ gave the parties the opportunity to address the jurisdictional question of the voluntariness of Petitioner's retirement application.1 On May 16, 2011, the MSPB AJ issued an Initial Decision dismissing the appeal for lack of jurisdiction. The MSPB AJ found that Petitioner did not request a reasonable accommodation prior to his removal or retirement, and had not shown that such an accommodation was available. Instead, the MSPB AJ noted that Petitioner sought a hardship transfer to a location closer to his home for economic reasons. Petitioner filed an appeal to the full Board. On April 4, 2012, the full Board issued a decision that upheld the dismissal of the appeal because, pursuant to the Board's typical approach to involuntary disability retirement claims, the MSPB lacked jurisdiction in this matter.
Although he was not provided appeal rights to the EEOC, Petitioner filed this instant petition with the EEOC anyway. Petitioner merely provided a copy of the MSPB's final decision with no statement indicating why he felt the decision was incorrect.
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. When the MSPB has denied jurisdiction in such matters, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, this case will be considered a "non-mixed" matter and processed accordingly. See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). Because the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's case. In accordance with these principles, Petition No. 0320120041 is hereby administratively closed, and the matter is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process the allegations of discrimination pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall notify Petitioner of the right to contact an EEO counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R � 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Z0610)
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
__1/31/13________________
Date
1 According to the MSPB, the matter of Petitioner's removal was no longer at issue given that his retirement was effective four months earlier.
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0320120041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120041