03A40050
03-11-2004
Kenneth M. Side, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth M. Side v. United States Postal Service
03A40050
March 11, 2004
.
Kenneth M. Side,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A40050
MSPB No. SE-0752-02-0150-I-1
DECISION
The petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of a Final Order issued by the Merit
Systems Protection Board (MSPB) concerning his 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.
The petitioner claimed that the agency discriminated against him based on
disability (mental health disorder) when he was removed effective June
26, 1999. The following facts are derived from the initial decision of
the MSPB. On December 6, 1999, the petitioner entered into a settlement
during the grievance process which returned him to the employment
rolls, but not back to work, pending a fitness-for-duty examination.
The settlement provided that if the fitness-for-duty examination revealed
he could return to work, he would be placed in a non-duty, non-pay status
and processing of his grievance on the removal action would resume.
Meanwhile, on February 25, 2001, the Office of Personnel Management (OPM)
approved the petitioner's application for disability retirement. The
petitioner also filed EEO complaints, respectively, in October 1999
and June 2000, about his removal and disability retirement application,
which were consolidated by the agency. It issued a final decision on the
complaints in January 2002, and the petitioner timely filed an appeal to
the MSPB.<1> The petitioner argued to the MSPB that the agency breached
the settlement agreement by, among other things, failing to fulfill
portions of the agreement related to his fitness-for-duty examination.
He also argued the settlement agreement was later "terminated," i.e.,
effectively rescinded.
The MSPB found that the petitioner identified the original removal action
as what he was seeking to appeal, and it also found that his subsequent
disability retirement was not a potentially appealable action because
it grew out of the settlement agreement. The MSPB found that whether
the settlement agreement was breached was unrelated to the question of
MSPB jurisdiction. Rather, it was an issue of compliance to be handled
in the grievance forum or such other mechanism found in the settlement
itself. The MSPB found that the settlement agreement was not terminated.
It concluded that it had no jurisdiction over the original removal
action because the petitioner voluntarily settled his grievance on this,
thereby waiving his right to appeal to the MSPB.
The initial decision of the MSPB gave appeal rights to the Board and
the EEOC. The petitioner filed a petition for review before the Board,
which was denied. Although the Board's decision did not contain petition
rights to the EEOC, the petitioner filed the instant petition.
The petitioner now argues that the settlement agreement was breached
and later terminated, and hence his EEO claim regarding his separation
should be processed. He contends that OPM only approved his retirement
application after both parties agreed to terminate the settlement.
Meanwhile, the petitioner also filed a petition to the United States
Court of Appeals for the Federal Circuit, Docket No. 04-3126, regarding
the MSPB decision, which is still pending.<2>
The petitioner's petition of the MSPB's final decision is denied on
the grounds that he filed an appeal to review the same decision with
the United States Court of Appeals for the Federal Circuit, which is
still pending. Accordingly, the Commission denies the petitioner's
petition for review.<3>
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
March 11, 2004
__________________
Date
1The petitioner filed his instant petition to the Equal Employment
Opportunity Commission (EEOC) from the MSPB's final decision on the
above appeal.
2As of March 3, 2004, the appeal was still pending.
3If the Federal Circuit does not disturb the MSPB's finding that it has no
jurisdiction over the June 1999 removal claim, the parties are reminded
that under 29 C.F.R. � 1614.302(b), the agency is required to process
this claim as a "non-mixed" matter pursuant to 29 C.F.R. Part 1614. To
the extent the petitioner is contending that his grievances should be
revived because his settlement agreement was allegedly breached, the
petitioner is reminded that the Commission has no jurisdiction over the
grievance process.