Robert A. Pulcini, Petitioner,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
03a00100 (E.E.O.C. Jul. 24, 2000)

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.