03A20094
01-14-2003
Rob R. Marshall, Petitioner, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Rob R. Marshall v. Department of Veterans Affairs
03A20094
January 14, 2003
.
Rob R. Marshall,
Petitioner,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 03A20094
MSPB No. DE-351-02-0029-I-1
DENIAL OF CONSIDERATION
On August 16, 2002, the petitioner filed a petition with the Equal
Employment Opportunity Commission (Commission) asking for review of the
Merit Systems Protection Board's (MSPB) final order on his case dated
July 19, 2002.
The MSPB characterized petitioner's MSPB appeal as concerning a
lateral reassignment or transfer without a loss in pay stemming from
a reduction-in-force.
The MSPB's initial decision dismissed the appeal for lack of jurisdiction.
Its final order denied the petitioner's petition to review its initial
decision.
The petitioner avers that he filed a mixed case appeal, meaning he
claimed discrimination. He argues that because the MSPB dismissed his
appeal for jurisdictional reasons, under 29 C.F.R. � 1614.302(b), the
agency must promptly notify him in writing of the right to contact an
EEO counselor within 45 days of receipt of the agency notice and to file
an EEO complaint, subject to 29 C.F.R. � 1614.107 (which lists grounds
under which complaints must be procedurally dismissed).
In view of the MSPB's position, there is little point in continuing to
view the matter as a "mixed case" as defined by 29 C.F.R. �1614.302(a),
and as such we deny consideration. The case will be treated as 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 Army, EEOC Request No. 05900883 (October 12,
1990); 29 C.F.R. �1614.302(b).
The petitioner has accurately recited the regulatory processing
requirement. In response to the petitioner's petition, the agency
states that by letter dated August 13, 2002, it promptly notified the
petitioner and his representative in writing of the right to contact an
EEO counselor within 45 days of receipt of the agency notice and to file
an EEO complaint. It provides a copy of the notice, which corroborates
this. The petitioner's consolidated complaint is referred to the agency
for further processing as outlined below. In accordance with 29 C.F.R. �
1614.302(b), the following notice is being provided to the parties.
NOTICE TO PARTIES
The petitioner is advised that by operation of 29 C.F.R. � 1614.302(b),
the agency is required to process the allegations of discrimination as
"non-mixed" matters pursuant to 29 C.F.R. Part 1614. To the extent the
agency has not already notified the petitioner and his representative in
writing of the right to contact an EEO counselor within 45 calendar days
of receipt of a written agency notice, and to file an EEO complaint,
subject to � 1614.107, it shall promptly do so. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the MSPB, within 30 calendar days of the date
that you receive this decision.
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 14, 2003
__________________
Date