03a50061
08-17-2005
Teresa M. Bonk, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Teresa M. Bonk v. Department of Homeland Security
03A50061
August 17, 2005
.
Teresa M. Bonk,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 03A50061
MSPB No. DC-0752-05-0397-I-1
DECISION
On June 21, 2005, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning her claim
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner, a Training Coordinator, GS-0301-11, at the United States Coast
Guard Aircraft Repair and Supply Center, Elizabeth City, North Carolina,
alleged that she was discriminated against on the basis of disability
(Major Depression, Generalized Anxiety Disorder, Dependent Personality)
when she was forced to retire on disability.
Petitioner filed a mixed-case complaint with the agency, alleging
disability discrimination as set forth above. Following an investigation,
the agency issued a decision finding no discrimination. Petitioner
subsequently appealed to the MSPB, which dismissed her appeal for lack of
jurisdiction. Specifically, the MSPB determined that petitioner had not
established that her retirement on disability in fact was involuntary.
Because it did not have jurisdiction over the case, the MSPB did not
address petitioner's allegations 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. 03A50061 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
August 17, 2005
__________________
Date