03A20066_r
07-25-2002
Virginia C. Walker, Petitioner, v. Thomas E. White, Secretary, Department of the Army, Agency.
Virginia Walker v. Department of the Army
03A20066
July 25, 2002
.
Virginia C. Walker,
Petitioner,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Petition No. 03A20066
MSPB No. CH-315H-02-0250-I-1
DENIAL OF CONSIDERATION
On May 2, 2002, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC) asking for review of an
Initial Decision issued by the Merit Systems Protection Board (MSPB)
dated February 21, 2002.
The petitioner filed an appeal with the MSPB on January 24, 2002,
challenging her termination from the agency. In its initial decision,
the MSPB dismissed the appeal for lack of jurisdiction. Specifically,
the MSPB granted the agency's motion to dismiss because petitioner was
a probationary employee at the time her employment was terminated and
because she did not show that her termination was based on marital status
or partisan political reasons. Consequently, because the petitioner
failed to demonstrate that she met jurisdictional prerequisites, the
MSPB also declined to consider her claims of discrimination based on sex,
race and disability.
EEOC Regulations 29 C.F.R. � 1614.304 and � 1614.305 provide that the EEOC
may review determinations on claims of discrimination which are raised
in connection with an action that is appealable to the MSPB. The MSPB,
however, indicated that it lacked jurisdiction to review petitioner's
appeal. For this reason, the EEOC denies the petitioner's appeal.
EEOC Regulation 29 C.F.R. � 1614.302(c)(2)(ii) further provides
that where the MSPB decides that it lacks jurisdiction, the agency
shall recommence processing a mixed case complaint as a non-mixed EEO
complaint. See Kimble v. Department of the Army, Petition No. 03980050
(April 16,1998). Therefore, this case 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
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision 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 Merits System's 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 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
July 25, 2002
__________________
Date