Petitioner, )

Equal Employment Opportunity CommissionDec 6, 1999
03990137 (E.E.O.C. Dec. 6, 1999)

03990137

12-06-1999

Petitioner, )


Maurice D. Marcure, Jr. v. United States Postal Service

03990137

December 6, 1999

Maurice D. Marcure, Jr., )

Petitioner, )

) Appeal No. 03990137

v. ) MSPB No. SF-0752-99-0022-I-1

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DENIAL OF CONSIDERATION

On August 20, 1999, Maurice D. Marcure, Jr. (petitioner) timely filed a

petition with the Equal Employment Opportunity Commission (the Commission)

for review of the Final Order of the Merit Systems Protection Board

(MSPB or the Board) issued July 22, 1999, concerning an allegation of

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. �791 et seq. and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.

For the reasons set forth herein, petitioner's petition is denied.

Petitioner filed an appeal with the MSPB on September 29, 1998, alleging,

in relevant part, that he was discriminated against on the bases of his

disability, age, and reprisal when he was removed from his position

of Distribution Clerk, effective January 14, 1992. In an initial

decision dated January 29, 1999, the MSPB Administrative Judge (AJ)

dismissed petitioner's appeal on the grounds that it was untimely filed.

In making this determination, the MSPB AJ found that petitioner was

advised that he could appeal the agency's action to both the Board and

through the grievance procedure.<1> Petitioner was told that he had the

right to appeal to the MSPB no later than twenty (20) days after the

effective date of his removal. The MSPB AJ found that petitioner was

made aware of his right to appeal his removal to the Board but failed

to do so and failed to provide circumstances beyond his control which

may have affected his ability to comply with the time limit. Therefore,

the MSPB AJ dismissed petitioner's appeal.

Petitioner appealed the initial decision to the Board. In its Final

Order dated July 22, 1999, the Board denied petitioner's petition for

review finding that his appeal failed to meet the standard of review.

EEOC Regulations provide that the Commission has jurisdiction over

mixed case appeals on which the MSPB has issued a decision that

makes a determination on allegations of discrimination. 29 C.F.R. �

1614.303 et seq. Petitioner is asking the Commission to review the

MSPB's decision that dismissed his MSPB appeal on the grounds that it

was untimely filed. However, because the MSPB's decision went to the

timeliness of petitioner's appeal with the MSPB and not an affirmative

defense of discrimination, the Commission does not have jurisdiction over

petitioner's petition. Therefore, the Commission DENIES petitioner's

petition for review.

STATEMENT OF PETITIONER'S RIGHTS

RIGHT TO FILE A CIVIL ACTION (W1092)

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 (Z1092)

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:

Dec. 6, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to petitioner, petitioner's representative

(if applicable), the agency, and MSPB on:

1 Petitioner elected to pursue his appeal through the negotiated grievance

procedure and did not appeal his removal to the MSPB at that time.