0320090035
04-14-2009
L C. Wade, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
L C. Wade,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090035
MSPB No. DA3443090044I1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of a decision 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.
On October 18, 2008, petitioner filed an appeal with the MSPB petitioner
alleging that he was constructively discharged from the agency because of
his disability (mental and physical) when the agency failed to reasonably
accommodate him and that he was forced to take disability retirement
from his position of letter carrier in April 1997 (his last day in a
pay status was August 17, 1996).
An MSPB Administrative Judge (AJ) issued an initial decision finding
that the Board had no jurisdiction over the matter. In the decision, the
AJ noted that petitioner had previously appealed this same involuntary
discharge to the Board and it was dismissed for lack of jurisdiction
because petitioner failed to raise non-frivolous allegations of
facts that, if proven, could show that his disability retirement was
involuntary. Wade v. USPS, MSPB Docket No. DA-0752-04-0019-I-1 (February
4, 2004). Petitioner then filed another appeal with the Board alleging he
was constructively suspended prior to the effective date of his disability
retirement. This appeal was also dismissed for lack of jurisdiction.
In the instant appeal before the Board, petitioner again asserted
a constructive discharge, but this time alleged that the agency
discriminated against him based on his disability. The MSPB AJ noted that
petitioner appeared to argue that he was discriminated against because
the agency sent him for a fitness-for-duty examination, and that the
agency failed to accommodate him. The MSPB AJ concluded that such matters
were not within the Board's jurisdiction and the matter was dismissed.
Petitioner then filed the instant petition with this Commission.
We note that petitioner also filed appeals to the Commission from previous
agency final decisions on the same matters. In EEOC Appeal No. 01972151
(November 17, 1997), the appeal was dismissed for untimeliness. However,
petitioner sought reconsideration of the matter, and in EEOC Request
No. 05980149 (February 2, 2001), the Commission granted petitioner's
request, and reopened the matter. Therein, the Commission identified
one of the issues as, "[o]n August 12, 1996, [petitioner] was terminated
because of management's failure to accommodate his medical restrictions
related to PTSD and a job-related injury." That issue was remanded to the
agency for further processing. In the MSPB record, the agency provided
evidence that it had accepted the remanded claims for processing. However,
rather than continue with his EEO complaint, petitioner filed in
the U.S. District Court for the Western District of Louisiana, Civil
Action No. 02-1889 on September 3, 2002. Therein, petitioner noted that
rather pursue his EEO complaint, he had elected to pursue the case in
court. Petitioner raised disability discrimination in his court case.
The court granted the agency's motion for summary judgment and dismissed
his federal claims with prejudice. Finally, in EEOC Appeal No. 0120081921
(June 26, 2008), it was noted that petitioner raised the same claims
with an EEO counselor - that he was denied reasonable accommodation from
1996 and 1997, and that he was constructively discharged in 1997. However,
petitioner only raised an "unfair hearing" claim in his formal complaint
and the matter was dismissed as expressing dissatisfaction with the
processing of a previously filed complaint.1 Petitioner's request for
reconsideration of the matter was denied. EEOC Request No. 0520080707
(August 28, 2008).
The Commission has held that where an individual files an appeal
with the MSPB which is dismissed for lack of jurisdiction, the matter
will not be viewed as a "mixed case." Rather, it will be treated as a
"non-mixed" matter and processed accordingly. See Schmitt v. Department
of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) (sets forth
the policy of the Commission assuming jurisdiction over cases dismissed by
the MSPB for lack of jurisdiction); Phillips v. Department of Army, EEOC
Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b). Where
the MSPB dismisses for lack of jurisdiction, the agency must resume
processing the matter from the point processing ceased under 29
C.F.R. Part 1614 (the EEO informal and formal complaints process).
However, we do not remand this matter to the agency for processing under
the above cases and regulation, because the petitioner's EEO claims have
been previously adjudicated by the Commission, remanded to the agency
for processing, and he chose to pursue them in court.
Accordingly, the Commission denies consideration of the instant petition.
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
April 14, 2009
__________________
Date
1 The Commission notes that where a complainant raises claims with an
EEO counselor or in an informal complaint, but does not raise them in
his formal complaint, the complainant is viewed as having abandoned the
claims. See Williams v. Dept. of the Navy, EEOC Appeal No. 0120055162
(October 17, 2007) ("a complainant who received counseling on an
allegation, but does not go forward with a formal complaint on that
allegation is deemed to have abandoned it." Davis v. USPS, EEOC Appeal
No, 01A61515 (July 19, 2006)).
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0320090035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090035