03a30060
08-15-2003
Donna M. Hammaker, Petitioner, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Donna M. Hammaker v. Dept. of Homeland Security
Petition No. 03A30060
August 15, 2003
.
Donna M. Hammaker,
Petitioner,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 03A30060
MSPB No. PH-315H-02-0023-I-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) final Order on her case dated June 23, 2003.
Petitioner was removed from her career-conditional appointment as a
Management & Program Analyst during her probationary period. She was
removed for failure to follow proper leave procedures. In her appeal
to the Board, petitioner alleged discrimination based on disability,
sex, and harassment. Thereafter the MSPB issued an initial decision
dismissing the appeal for lack of jurisdiction because petitioner was a
probationary employee. The full Board denied petitioner's petition for
review of the initial decision.
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). 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. 03A30060 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 her allegations of discrimination as a
"non-mixed" matter 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. 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.
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
August 15, 2003
_________________
Date