03a00050
06-07-2002
Joseph J. Reiner, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Joseph J. Reiner v. Department of the Air Force
03A00050
June 7, 2002
.
Joseph J. Reiner,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A00050
MSPB No. DA 0752990226-I-1
DENIAL OF CONSIDERATION
On January 11, 2000, Joseph J. Reiner (hereinafter referred to as
petitioner) filed a petition with the Equal Employment Opportunity
Commission (the Commission) for review of the December 17, 1999, Final
Order of the Merit Systems Protection Board (MSPB or Board) concerning
an allegation of discrimination in violation of the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq., and � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Prior to filing an appeal with the MSPB, petitioner filed a mixed case
EEO complaint alleging discrimination based on disability (mental,
work-related stress), reprisal, and age (DOB 9-30-46). Following an
investigation, the agency issued a final agency decision on February
4, 1999, which provided petitioner, inter alia, a right of appeal to
the MSPB. Petitioner filed an appeal with the MSPB on February 24, 1999.
The MSPB denied jurisdiction of petitioner's case on the grounds that
it did not involve an action that was appealable to the Board, finding
that petitioner was not constructively discharged. In view of the MSPB's
position, the Commission finds that petitioner's complaint is no longer a
"mixed case" as defined by 29 C.F.R. � 1614.302(a). See generally Schmitt
v. Department of Transportation, EEOC Appeal No. 01902126 (July 9, 1990);
Phillips v. Department of Army, EEOC Request No. 05900883 (October 12,
1990); 29 C.F.R. � 1614.302(b). Accordingly, petitioner's complaint 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(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 thirty (30) days of the date this decision
becomes final. Within the same period, the agency shall afford petitioner
his right to request a hearing before an EEOC Administrative Judge or a
final agency decision (FAD) without a hearing. 29 C.F.R. � 1614.108(f).
If petitioner requests a FAD without a hearing, or does not respond to
the notice of rights, the agency shall issue a FAD within sixty (60)
days of receipt of petitioner's request, or the expiration of the 30-day
notice period. 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.
STATEMENT OF PETITIONERS' RIGHTS
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
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 Hadden, Director
Office of Federal Operations
__06-07-02________
Date