Vickie D. Byrd Petitioner,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
03a00106 (E.E.O.C. Aug. 29, 2000)

03a00106

08-29-2000

Vickie D. Byrd Petitioner, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Vickie D. Byrd v. Veterans Affairs

03A00106

August 29, 2000

.

Vickie D. Byrd

Petitioner,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Petition No. 03A00106

MSPB No. CH-315H-99-0373-I-1

DENIAL OF CONSIDERATION

On June 9, 2000, Vickie D. Byrd (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 her case.

Petitioner, a GS-04 Nursing Assistant, filed an appeal with the

MSPB alleging reprisal and discirmination when she was removed from

her position for disruptive behavior, and poor interprersonal and

team skills. The MSPB dismissed the appeal because petitioner was a

probationary employee and did not show she had completed enough creditable

service time to show otherwise. The MSPB did not address petitioner's

claims of discrimination and reprisal and the decision to dismiss was

upheld by the full Board in a decision dated February 11, 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(b), the

agency is required to process her 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 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:

August 29, 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. 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.