0320170036
04-27-2017
Millicent H.,1 Petitioner, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Millicent H.,1
Petitioner,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Petition No. 0320170036
MSPB No. CH-0432-16-0351-I-1
DENIAL OF CONSIDERATION
On March 13, 2017, Petitioner filed a petition with the Equal Employment Opportunity Commission, seeking review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, we are DENYING consideration of Petitioner's petition for review.
The record establishes that the MSPB issued an initial decision on November 10, 2016. The initial decision became final on December 15, 2016. Petitioner was advised that any appeal to the Commission had to be filed within 30 days of the initial decision becoming final. Therefore, because the initial decision became final on December 15, 2016, Petitioner had to file her petition for review with the Commission no later than Tuesday, January 17, 2017.2
Under the applicable regulations, a petition must be filed with the Commission within 30 days of receipt of the final decision. 29 C.F.R.1614.303(c). In the instant case, Petitioner's petition for review was filed approximately 55 days beyond the deadline, as she was required to file no later than January 17, 2017. According to Petitioner, after consulting the Commission's website, she was under the impression that she was going to receive a final order from the Agency that either accepted or rejected the MSPB Administrative Judge's initial decision. After receiving that final order from the Agency, Petitioner thought that she could then file an appeal to the Commission. Upon contacting the Agency, however, she was informed that it would not be issuing a final order. According to Petitioner, "[i]t appears I have received different information regarding the Federal Sector for the EEO Complaint Process."
We find that Petitioner has not offered an adequate justification for an extension of the applicable time limit for filing her petition. The initial decision clearly explained that it would become final on December 15, 2016, and that Petitioner had to file any appeal to the Commission within 30 days of that date. Instead, Petitioner relied on information that did not apply to her situation. Her appeal was from the final order of the MSPB, not an Agency final order. Accordingly, because the subject petition for review was untimely filed, the Commission will DENY consideration.
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
__4/27/17________________
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.
2 The 30th day was January 14, 2017, but that date fell on a Saturday. The next business day was Tuesday, January 17th, because Monday, January 16th, was a Federal Holiday.
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