Jay Wallace, Petitioner,v.Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMar 24, 2005
03a50017 (E.E.O.C. Mar. 24, 2005)

03a50017

03-24-2005

Jay Wallace, Petitioner, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.


Jay Wallace v. Department of Commerce

03A50017

March 24, 2005

.

Jay Wallace,

Petitioner,

v.

Carlos M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Petition No. 03A50017

MSPB No. DC-0351-03-0401-I-2

DECISION

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) 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, a Ceramics Engineer, alleged that he was discriminated against

on the basis of age when his position was selected for abolishment due to

a reduction in force (RIF), and he was not reassigned to either of two

positions that were created within the agency. Petitioner filed a mixed

case complaint and when the agency failed to issue a timely decision,

petitioner filed an appeal with the MSPB. Following a hearing, an

MSPB AJ issued a decision finding no discrimination. The Board denied

petitioner's subsequently filed petition for review.

EEOC Regulations provide that the Commission has jurisdiction over

mixed case complaints on which the MSPB has issued a decision that

makes determinations on allegations of discrimination. 29 C.F.R. �

1614.303 et seq. The Commission must determine whether the decision of

the MSPB with respect to the allegations of discrimination constitutes a

correct interpretation of any applicable law, rule, regulation or policy

directive, and is supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c).

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to concur with the final decision

of the MSPB finding no discrimination. The Commission finds that the

MSPB's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole.

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

March 24, 2005

__________________

Date