03A10064
04-10-2002
Clifton D. Cook, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Clifton D. Cook v. Department of Veterans Affairs
03A10064
04-10-02
.
Clifton D. Cook,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A10064
MSPB No. PH-0752-00-0166-I-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC) requesting review of the final decision of the Merit
Systems Protection Board (MSPB) dated March 8, 2001.
Petitioner, believing he was a victim of discrimination, sought EEO
counseling and, subsequently, filed a complaint alleging that the agency
discriminated against him based on age (40 at the time of retirement)
and disability (legally blind) when it failed to provide him with a
reasonable accommodation, which resulted in his involuntary disability
retirement on February 1, 1997. The agency conducted an investigation
and informed petitioner of his right to elect a hearing before an
EEOC administrative judge (AJ) or an immediate final agency decision
(FAD) without a hearing. Petitioner elected a hearing before an AJ.
The AJ determined that petitioner's claim was a mixed case complaint<1>
and remanded the matter to the agency to issue a FAD with appeal rights
to the MSPB. Petitioner appealed. The MSPB issued an initial decision
finding that petitioner's retirement was not involuntary and, thus,
dismissing petitioner's appeal for lack of jurisdiction. Petitioner filed
a petition for review with the MSPB, which was denied. This petition
for review followed.
In light of the MSPB's decision, we find that petitioner's claim is
not a �mixed case� as defined by 29 C.F.R. � 1614.302. Therefore, this
case will be considered a �non-mixed� matter and processed accordingly.
29 C.F.R. � 1614.302(c)(2)(ii). The petitioner's complaint is referred
to the agency for further processing as outlined below.
NOTICE TO PARTIES
The petitioner is advised that by operation of 29 C.F.R. �
1614.302(c)(2)(ii), the agency is required to process petitioner's
complaint 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 30 days of the date this
decision becomes final. Within the same time period, the agency shall
submit a request to the appropriate EEOC District Office to schedule
petitioner's complaint for a hearing, unless the petitioner requests a
final decision without a hearing. If the petitioner requests a final
decision without a hearing, the agency shall issue a final decision with
appeal rights to the EEOC within 60 days of receipt of the petitioner's
request. The petitioner has the right to file a civil action in an
appropriate United States District Court, based on the decision of the
MSPB within 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
__04-10-02________________
Date
1A �mixed case complaint� is a complaint of employment discrimination
filed with a Federal agency based on race, color, religion, sex, national
origin, age or disability related to or stemming from an action that
can be appealed to the MSPB. 29 C.F.R. � 1614.302(a).