03a00100
07-24-2000
Robert A. Pulcini, Petitioner, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Robert A. Pulcini v. Social Security Administration
03A00100
July 24, 2000
.
Robert A. Pulcini,
Petitioner,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Petition No. 03A00100
MSPB No. DC-1221-98-0447-W-1
DENIAL OF CONSIDERATION
On November 8, 1999, Robert A. Pulcini (petitioner) filed a petition
with the Equal Employment Opportunity Commission (EEOC) regarding the
Merit Systems Protection Board's (MSPB or the Board) final decision on
his case.
Petitioner filed a mixed case appeal with the MSPB regarding his
alleged removal, denial of reinstatement, and non-selection for other
positions. The record shows that the MSPB dismissed the appeal for lack
of jurisdiction. Specifically, the MSPB found that petitioner had not
raised a non-frivolous allegation of Board jurisdiction over his appeal.
Because it did not have jurisdiction over the case, the MSPB did not
address petitioner's allegation of disability discrimination.
When the MSPB has denied jurisdiction in such matters, the Commission
has held 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).<1> Thus, the
case will be considered 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 the Army, EEOC
Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i)
and (ii). Petition No. 03A00100 hereby is DENIED, 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 as
a �non-mixed� matter pursuant to � 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. 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 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 PETITIONER'S 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 M. Hadden, Acting Director
Office of Federal Operations
July 24, 2000
__________________
Date
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.