0320090005
12-24-2008
Charmayne M. Kirkland, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Charmayne M. Kirkland,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 0320090005
MSPB No. DC0752080582I1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of an initial decision 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 alleged that she was discriminated against on the basis of
disability when she was assigned to the position of Management Program
Specialist, GS-0301-11 from her position of Industrial Hygienist,
GS-0690-13. Petitioner alleged her reassignment was an involuntary
demotion. Petitioner filed an EEO complaint on the matter, it was
investigated, and a decision was issued which petitioner appealed to
the Board. An MSPB Administrative Judge (AJ) issued an initial decision
finding that petitioner failed to make a nonfrivolous allegation that
her reduction in grade was involuntary. Thus, the AJ found that the
Board lacked jurisdiction over the matter. The AJ's decision did not
give petitioner appeal rights to the Commission. Petitioner then filed
the instant petition.
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. Dept. of Transportation, EEOC Appeal No. 01902126
(July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883
(October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance
with these principles, Petition No. 0320090005 hereby is administratively
closed, and the matter is referred to the agency for further processing
as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(c)(2)(ii),
the agency is required to process her allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The agency
shall acknowledge to petitioner that it has received the remanded matter
within thirty (30) days of the date this decision becomes final.1 If
it has not already done so, the agency shall issue to the petitioner
a copy of the investigative file and also 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 petitioner requests a final
decision without a hearing, the agency shall issue a final decision within
sixty (60) days of receipt of petitioner's request. 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 the decision is received.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20013. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 24, 2008
__________________
Date
1 Petitioner's EEO complaint had 9 issues which were addressed in the
agency's decisions. All of the issues should be included in the processing
of the matter.
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2
0320090005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
3
0320090005