03a50036
06-10-2005
Mitchell L. Anderson, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Mitchell L. Anderson v. Department of the Navy
03A50036
June 10, 2005
.
Mitchell L. Anderson,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A50036
MSPB No. SF-0752-04-0321-I-2
DENIAL OF CONSIDERATION
On April 15, 2005, Mitchell L. Anderson (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.
The record reflects the following history of petitioner's case: Petitioner
initially filed an EEO complaint with the agency alleging disability
discrimination in connection with the denial of intermittent leave,
the denial of a change in tour/duty hours, and the agency's failure to
consider him for promotion. The agency accepted the first two claims,
but rejected the third as untimely raised. The Commission affirmed.
Mitchell Anderson v. Department of the Navy, EEOC Appeal No. 01962981
(December 5, 1996).
Petitioner requested a hearing before an EEOC Administrative Judge (AJ),
who permitted him to amend his complaint to include an allegation of
involuntary retirement. Subsequently, however, the EEOC AJ determined
that the involuntary retirement claim was within the jurisdiction of the
MSPB, and remanded the case to the agency for issuance of a final agency
decision (FAD) and appropriate appeal rights. The agency thereafter
issued a FAD finding no discrimination as to all three issues, and
provided petitioner with appeal rights to the MSPB.
Petitioner filed an appeal with the MSPB regarding his claim of
involuntary retirement. After reviewing the facts of the case, the
MSPB AJ dismissed the appeal for lack of jurisdiction. Specifically,
the MSPB found that petitioner had not demonstrated that his retirement
was involuntary. Because he found that MSPB lacked jurisdiction, the
MSPB AJ did not further 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). 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. 03A50036 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(c)(2)(ii),
the agency is required to process the allegation of discrimination as a
�non-mixed� matter pursuant to 29 C.F.R. � 1614.109 et seq. The agency
shall acknowledge to the petitioner that it has received the remanded
matter within thirty (30) days of the date this decision becomes final.
If it has not already done so, the agency shall issue to the petitioner
a copy of the investigative file and also shall notify the petitioner
of the right to a hearing before an EEOC Administrative Judge within
sixty (60) calendar days of the date this decision becomes final,
unless the matter is otherwise resolved prior to that time. If the
petitioner requests a final decision without a hearing, the agency
shall issue a final decision within sixty (60) days of receipt of the
petitioner's request. Petitioner has 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
June 10, 2005
__________________
Date