03a00128
11-01-2000
Russell Y. Zizek Petitioner, v . William J. Henderson, Postmaster General, United States Postal Service, Agency.
Russell Y. Zizek v. USPS
03A00128
November 1, 2000
.
Russell Y. Zizek
Petitioner,
v
.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A00128
MSPB No. CH-0752-99-0667-I-1
DENIAL OF CONSIDERATION
On September 5, 2000, Russell Y. Zizak (hereinafter referred to as
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, a Supervisor of Vehicle Maintenance filed an appeal with
the MSPB from a final agency decision on his EEO complaint alleging race
and age discrimination regarding his alleged involuntary retirement from
the agency. The MSPB dismissed the appeal for lack of jurisdiction,
finding that petitioner's retirement was not involuntary. The MSPB
did not address petitioner's claims of discrimination and the decision
to dismiss was upheld by the full Board in a decision dated August 4,
2000. The Board did not give petitioner appeal rights to the Commission
and there is no indication that the agency has complied with 29 C.F.R. �
1614.302(b).<1>
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. 03A00111 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(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.
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 one hundred fifty (150) 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.
STATEMENT OF PETITIONER'S RIGHTS
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:
November 1, 2000
Date
Carlton
M.
Hadden,
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 MSPB on:
________________ ____________________________
Date 1 On 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. The regulations, as amended,
may be found at the Commission's website at www.eeoc.gov.