03A50009
01-10-2005
Gary L. Coleman, Petitioner, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Gary L. Coleman v. Department of Homeland Security
03A50009
January 10, 2005
.
Gary L. Coleman,
Petitioner,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 03A50009
MSPB No. PH-3443-04-0349-I-1
DENIAL OF CONSIDERATION
On December 6, 2004, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB).
On May 7, 2004, petitioner filed a mixed case appeal with the MSPB
alleging discrimination on the basis of race (Black) when the agency
allegedly failed to pay him at the rate of pay it initially offered him
at the time of his hiring. The MSPB Administrative Judge (AJ) found that
the Board did not have jurisdiction to address petitioner's allegations
concerning his rate of pay. Accordingly, the matter was dismissed for
lack of jurisdiction. Petitioner filed a petition for review with the
Board which was denied. Petitioner filed a petition for review with
this Commission.
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. 03A50009 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
January 10, 2005
__________________
Date