03a50075
10-21-2005
Nestor Casabar, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Nestor Casabar v. Dept. of the Navy
Petition No. 03A50075
October 21, 2005
.
Nestor Casabar,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A50075
MSPB No. SF-0351-05-0103-I-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC or Commission) asking for review of the Merit Systems
Protection Board's (MSPB) decision on his case dated July 29, 2005.
Petitioner was a Supply Technician, GS-7 with the agency. The agency
underwent a reduction in force and petitioner was reassigned to another
Supply Technician, GS-7 position. Petitioner filed an appeal with the MSPB
challenging his reassignment. In a letter to the Board dated November 18,
2004, he raised unspecified allegations of discrimination in connection
with his reassignment. The MSPB issued an initial decision dismissing the
appeal for lack of jurisdiction, finding that petitioner's reassignment
did not result in his receiving a lower grade or rate of pay nor was
he demoted. The initial decision noted that petitioner did not raise
a nonfrivolous claim of discrimination. Petitioner sought review by
the full Board which denied his petition. The Board's decisions did not
give petitioner appeal rights to the Commission. In his petition to the
Commission, petitioner appears to allege that his reassignment was due
to age discrimination and reprisal. <1>
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, the case
will be considered a "non-mixed" matter and processed accordingly.
See generally Schmitt v. Department of Transportation, EEOC Appeal
No. 01902126 (July 9, 1990); Phillips v. Department of the Army, EEOC
Request No. 05900883 (October 12, 1990); 29 C.F.R. �1614.302(c)(2)(i) and
(ii). Petition No. 03A50047 hereby is administratively closed, and the
matter is referred to the agency for further processing as outlined below.
NOTICE TO PARTIES
Petitioner is advised that by operation of 29 C.F.R. �1614.302(b),
the agency is required to process his allegations of discrimination
pursuant to 29 C.F.R. �1614.105 et seq. The agency shall notify the
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 �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. Petitioner shall 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 this decision is received.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 21, 2005
_________________
Date
1The record reflects that petitioner retired from the agency effective
November 30, 2004.