03a50023
04-18-2005
Michael C. Smart v. Dept. of the Army Petition No. 03A50023 April 18, 2005 . Michael C. Smart, Petitioner, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Michael C. Smart v. Dept. of the Army
Petition No. 03A50023
April 18, 2005
.
Michael C. Smart,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 03A50023
MSPB No. DA-1221-04-0340-W-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC or Commission) asking for review of the Merit Systems
Protection Board's (MSPB) decision on his case dated February 15, 2005.
Petitioner was a Police Officer at Fort Bliss, Texas. He was removed
from his position during his probationary period for falsely identifying
himself to a member of the military, discourteous behavior, and failure
to follow instructions. Petitioner contacted an EEO counselor shortly
afterwards, but it is unclear as to whether he filed a complaint
regarding the termination. Petitioner filed an individual right of
action appeal with the MSPB and therein alleged discrimination based
on race and reprisal in connection with his removal. The MSPB issued
an initial decision dismissing the appeal for lack of jurisdiction,
finding that petitioner did not exhaust all of his administrative
remedies before the Office of Special Counsel, he did not make a
nonfrivolous allegation that he engaged in whistle blowing activity,
and he did make a nonfrivolous allegation that his disclosures were a
contributing factor to his allegation. Petitioner sought review by the
full Board which denied his petition. The Board's decisions did not give
petitioner appeal rights to the Commission.
Since the MSPB has denied jurisdiction over this matter, Petition
No. 03A50023 hereby is administratively closed and the matter 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(b), the
agency is required to process his allegations of discrimination pursuant
to 29 C.F.R. �1614.105 et seq. The agency shall notify the petitioner
of the right to contact an EEO counselor within forty-five (45) days
of receipt of this decision, and to file an EEO complaint, subject to
�1614.107.<1> The date on which the petitioner filed the appeal with the
MSPB shall be deemed the date of initial contact with the EEO counselor.
Petitioner shall have the right to further review of the decision of
the MSPB as set forth in the Board's decision.
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
April 18, 2005
_________________
Date
1In his petition to the Commission, petitioner attached a letter dated
May 21, 2004 sent by the EEO officer which instructed him to contact
the EEO office within 45 days to address the alleged discriminatory
incident. There is no information as to whether petitioner did
so. Further, we note that at that time petitioner had his appeal pending
with the full Board. Hence we cannot determine whether the agency has
processed his EEO complaint on this matter.