Stanley J. Rzucidlo, Petitioner,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 21, 2006
03a60118 (E.E.O.C. Sep. 21, 2006)

03a60118

09-21-2006

Stanley J. Rzucidlo, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Stanley J. Rzucidlo,

Petitioner,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Petition No. 03A60118

MSPB No. PH-1221-05-0549-W-1

DENIAL OF CONSIDERATION

On July 18, 2006, petitioner filed a timely petition with the Equal

Employment Opportunity Commission asking for review of an Opinion

and Order issued by the Merit Systems Protection Board (MSPB or

Board) concerning his claim of discrimination in violation of the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.

Petitioner filed an appeal with the MSPB. He alleged that he was

discriminated against on the basis of age when, effective February 23,

2005, he was terminated from his position of Physical Science Technician

at the agency's Tobyhanna Army Depot in Tobyhanna, Pennsylvania, during

his probationary period for conduct unbecoming a federal employee and

misuse of government property/resources.1

The MSPB Administrative Judge issued a decision without a hearing

dismissing the appeal. The MPSB AJ dismissed the appeal for lack of

jurisdiction. Petitioner filed a petition for review with the Board.

The Board issued its Opinion and Order dismissing the appeal for lack

of jurisdiction. This petition followed.

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). Accordingly, EEOC Petition No. 03A60118 is administratively

closed and the matter is referred to the agency for further processing

in accordance with the notice set forth below.

NOTICE TO PARTIES

Petitioner is advised that by operation of 29 C.F.R. � 1614.302(c)(2)(ii),

the agency is required to process the allegation of discrimination as a

"non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The agency

shall acknowledge to the petitioner that it has received the remanded

matter within thirty (30) days of the date this decision becomes final.

The agency shall issue to the petitioner a copy of the investigative file

and also shall notify the petitioner of the right to a hearing before an

EEOC Administrative Judge within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the petitioner requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of the petitioner's request. Petitioner has 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

September 21, 2006

__________________

Date

1 The record also indicated that petitioner alleged that the removal

action constituted reprisal for whistleblowing disclosures. It is well

settled that engaging in whistle-blowing is not protected EEO activity.

See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19,

1996)(finding that participation in grievance process is protected only

if claims of discrimination were raised therein). Therefore, reprisal

for whistle-blowing as a basis for petitioner's appeal is not addressed

in this decision.

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03A60118

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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03A60118