0320100019
07-27-2010
Guillermo Mojarro, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Guillermo Mojarro,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Petition No. 0320100019
MSPB No. SF-0752-10-0222-I-1
DENIAL OF CONSIDERATION
On February 21, 2010, Petitioner filed correspondence with the Equal
Employment Opportunity Commission (EEOC or Commission). The Commission
docketed it as a petition from the decision of the Merit Systems
Protection Board (MSPB). The decision concerned Petitioner's appeal with
the MSPB alleging he was constructively discharged from his position of
mail processing clerk, effective October 31, 2009.
BACKGROUND
On February 18, 2010, the MSPB made an initial decision dismissing
the above appeal without prejudice. It explained that the parties
agreed to the following: Petitioner was going to apply to the Office
of Personnel Management (OPM) for disability retirement benefits, and
understood that he had one year from his date of separation (October 31,
2009) to do so. If OPM granted the application, Petitioner would accept
the disability retirement benefits and not re-file the appeal. If OPM
denied the application, Petitioner could file an appeal of the denial
to the MSPB. Petitioner could re-file appeal SF-0752-10-0222-I-1 only
if his application for disability retirement benefits was ultimately
unsuccessful before the Board.1 Although the initial decision did not
contain appeal rights to the EEOC, Petitioner filed a petition for review
with the EEOC.
CONTENTIONS ON PETITION
Referring to Agency complaint number 4F-926-0281-09, Petitioner writes
that the Agency misrepresented the facts when it asserted he filed his
appeal with the MSPB after filing his complaint. Petitioner previously
appealed the Agency's dismissal of complaint 4F-926-0281-09, and it was
docketed by the Commission as EEOC Appeal No. 0120101346. Petitioner
writes that the MSPB dismissed the issue of constructive discharge,
and argues that the Commission has jurisdiction over all the claims in
complaint 4F-926-0281-09, and should order an investigation thereof in
accordance with 29 C.F.R. � 1614.108.
ANALYSIS AND FINDINGS
As an initial matter, Petitioner's appeal of the Agency's dismissal
of complaint 4F-926-0281-09, will be decided under EEOC Appeal
No. 0120101346. The appeal is pending.
To the extent Petitioner is asking the Commission to review the MSPB's
initial decision, we do not have jurisdiction over the matter. EEOC
Regulations provide that the Commission has jurisdiction over mixed case
appeals on which the MSPB has issued a decision that makes determinations
on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. Here,
the MSPB dismissed the appeal pursuant to an agreement by the parties.
There are no determinations on allegations of discrimination to review.
Further, the initial decision is not final, which also divests the
Commission of jurisdiction.
Accordingly, Petitioner's petition for review of the MSPB's decision
is DENIED.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (Z0610)
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
July 27, 2010
__________________
Date
1 According to the MSPB, Petitioner filed a Petition for Review of the
Initial Decision on March 12, 2010, and as of July 26, 2010, the Petition
was still pending.
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0320100019
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320100019