03A10059
04-18-2001
Andrew L. Colvin, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Andrew L. Colvin v. Department of the Air Force
03A10059
April 18, 2001
.
Andrew L. Colvin,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 03A10059
MSPB No. AT-1221-00-0010-W-1
DENIAL OF CONSIDERATION
On February 2, 2001 the petitioner filed a petition with the Equal
Employment Opportunity Commission (Commission) asking for review of the
Merit Systems Protection Board's (MSPB) final decision on his case dated
January 3, 2001.
The petitioner filed an appeal with the MSPB. The MSPB characterized
the appeal as concerning a letter of reprimand dated April 2, 1999.
The petitioner contended that he was retaliated against, in part, for
EEO activity.
The MSPB's initial decision dismissed the appeal for lack of jurisdiction.
It reasoned that the petitioner did not engage in protected whistle
blower activity.
Under 29 C.F.R. � 1614.302(b), where the MSPB dismisses a mixed case
appeal for lack of jurisdiction, the agency must promptly notify the
petitioner in writing of the right to contact an EEO counselor within 45
days of receipt of the agency notice and to file an EEO complaint, subject
of 29 C.F.R. � 1614.107, which lists grounds under which complaints must
be procedurally dismissed.
NOTICE TO PARTIES
The petitioner is advised that by operation of 29 C.F.R. � 1614.302(b),
the agency is required to process the allegations of discrimination as
"non-mixed" matters pursuant to 29 C.F.R. Part 1614. The agency shall
notify petitioner of the right to contact an EEO counselor within 45
calendar 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, unless the petitioner previously contacted an EEO
counselor on the same matter. You have the right to file a civil action
in an appropriate United States District Court, based on the decision
of the MSPB, within 30 calendar days of the date that you receive this
decision.<1>
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
April 18, 2001
__________________
Date
1The petitioner asks that the Commission consolidate this case with
another claim pending for hearing before an EEOC Administrative Judge.
The petitioner is advised that under 29 C.F.R. � 1614.106(d), he may
file a motion with the administrative judge (AJ) to amend the claim that
is pending before the AJ to include issues or claims like or related to
those raised in the claim pending before the AJ. The AJ has discretion
on whether to grant the motion.