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.