03a60118
09-21-2006
Stanley J. Rzucidlo,
Petitioner,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Petition No. 03A60118
MSPB No. PH-1221-05-0549-W-1
DENIAL OF CONSIDERATION
On July 18, 2006, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of an Opinion
and Order issued by the Merit Systems Protection Board (MSPB or
Board) concerning his claim of discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
Petitioner filed an appeal with the MSPB. He alleged that he was
discriminated against on the basis of age when, effective February 23,
2005, he was terminated from his position of Physical Science Technician
at the agency's Tobyhanna Army Depot in Tobyhanna, Pennsylvania, during
his probationary period for conduct unbecoming a federal employee and
misuse of government property/resources.1
The MSPB Administrative Judge issued a decision without a hearing
dismissing the appeal. The MPSB AJ dismissed the appeal for lack of
jurisdiction. Petitioner filed a petition for review with the Board.
The Board issued its Opinion and Order dismissing the appeal for lack
of jurisdiction. This petition followed.
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). Accordingly, EEOC Petition No. 03A60118 is administratively
closed and the matter is referred to the agency for further processing
in accordance with the notice set forth 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.
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
September 21, 2006
__________________
Date
1 The record also indicated that petitioner alleged that the removal
action constituted reprisal for whistleblowing disclosures. It is well
settled that engaging in whistle-blowing is not protected EEO activity.
See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19,
1996)(finding that participation in grievance process is protected only
if claims of discrimination were raised therein). Therefore, reprisal
for whistle-blowing as a basis for petitioner's appeal is not addressed
in this decision.
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03A60118
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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03A60118