03a00088
06-29-2000
Petitioner, )
Frank Kryfka, Jr. v. Department of Transportation
03A00088
June 29, 2000
Frank Kryfka, Jr., )
Petitioner, )
) Appeal No. 03A00088
v. ) Agency No. CH0752990592I1
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DENIAL OF CONSIDERATION
On April 28, 2000 Frank Kryfka, Jr. (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (EEOC or Commission)
for review of the Merit Systems Protection Board's (MSPB) final decision
on his case. The petition is governed by the Civil Service Reform Act
of 1978 and the EEOC Regulations at 29 C.F.R. � 1614.303 et seq.<1>
Petitioner, a former Electronic Technician, GS-12, for the Federal
Aviation Administration (FAA) in Muskegon, Michigan, filed a formal
complaint on July 25, 1991, alleging that he had been subjected to age
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Following an
investigation, the agency issued a final decision (FAD) finding no
discrimination on March 17, 1994. Petitioner appealed this FAD to
the EEOC and on April 26, 1995, the EEOC remanded the complaint for
further processing, noting that the agency failed to address the issue
of constructive discharge. On August 30, 1996, the agency issued a new
FAD, addressing the constructive discharge allegation and again finding
no discrimination. Petitioner again appealed to the EEOC and the EEOC
again remanded the complaint, noting that complainant should have been
given appeal rights to the MSPB. The agency reissued its FAD with new
appeal rights on June 9, 1999 and petitioner appealed to the MSPB on
July 6, 1999.
On March 31, 2000, the MSPB Administrative Judge (AJ) issued an Initial
Decision, finding that the MSPB lacked jurisdiction over the appeal.
The AJ found, without a hearing, that complainant did not prove that
he had been subjected to intolerable working conditions such that a
reasonable person in his position would have felt compelled to retire.
Concluding that complainant's retirement was therefore not involuntary,
the AJ found that the MSPB had no jurisdiction over the complaint and
dismissed petitioner's appeal. Petitioner then filed this petition
for review.
Because of the MSPB's decision finding that it lacks jurisdiction in this
matter, the Commission holds 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 "nonmixed matter" and processed
accordingly. See generally Schmitt v. Department of Transportation,
EEOC Appeal No. 01902126 (June 29, 1990); Phillips v. Department of
the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. �
1614.302(c)(2)(ii) and (ii). The parties are advised that the Commission
has redocketed petitioner's petition for review as an appeal from the
agency's final decision dated June 9, 1999 and assigned it EEOC Appeal
No. 01A04499. Petition No. 03A00088 is hereby administratively closed.
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:
June 29, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.