03990138
02-01-2000
Petitioner, )
Terry S. Metzenbaum v. General Services Administration
03990138
February 1, 2000
Terry S. Metzenbaum, )
Petitioner, )
) Appeal No. 03990138
v. ) MSPB No. CH-3443-98-0814-I1
)
Davis J. Barram, )
Administrator, )
General Services Administration, )
Agency. )
)
DENIAL OF CONSIDERATION
On August 23, 1999, Terry S. Metzenbaum (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission (the Commission)
for review of the Opinion and Order of the Merit Systems Protection Board
(MSPB or the Board) issued August 11, 1999, concerning an allegation of
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq.
Petitioner filed an application with the agency concerning a Police
Officer position. The agency tentatively selected petitioner for one of
the vacant positions. Subsequently, the agency conducted a background
investigation which discovered petitioner's credit history. Based upon
his credit history, the agency found petitioner to be unsuitable for the
position.<1> Petitioner filed an EEO complaint alleging that the agency
discriminated against him on the bases of disability and reprisal.<2>
Following the agency's final decision, petitioner appealed this action
to the MSPB. The MSPB AJ, in his Bench Initial Decision, found that
petitioner's credit history was an appropriate basis upon which to make
a negative determination.
Petitioner petitioned for review of this decision to the Board. The Board
denied the petition but vacated the initial decision and dismissed the
appeal for lack of jurisdiction. In its Opinion and Order, the Board
found that petitioner failed to establish that the Board had jurisdiction
over his appeal. Therefore, the Board vacated the previous decision
and dismissed his appeal providing petitioner with appeal rights to the
United States Court of Appeals for the Federal Circuit.
Petitioner has filed an appeal without substantive comment. The agency
did not file comments in response to petitioner's appeal.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. �1614.303
et seq. In its Opinion and Order, the Board found that it did not
have jurisdiction over petitioner's appeal. 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. 03990138 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 his 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 and
EEO complaint, subject to 29 C.F.R. �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
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
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:
Feb. 1, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the agency, and the MSPB on:
_________________________ __________________________________
1 The agency cited its Suitability and Personnel Security Handbook
which cites criteria for disqualification of employment based on a
history of not meeting financial obligations and inability or
unwillingness to satisfy debts.
2 Petitioner withdrew his claim of disability discrimination in a
prehearing conference dated November 6, 1998, and has not alleged it in
his appeal.