0320120062
01-11-2013
Carl A. Bozeman, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Carl A. Bozeman,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Petition No. 0320120062
MSPB No. DC-0752-11-0379-I-1
DENIAL OF CONSIDERATION
On August 9, 2012, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a final 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 February 13, 2011, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when it constructively suspended him from duty and pay as a Mail Processing Clerk at the Agency's Norfolk Processing and Distribution Center in Virginia.1
On June 16, 2011, after a telephone hearing, an MSPB Administrative Judge (MSPB AJ) issued an initial decision dismissing the appeal for lack of jurisdiction. Specifically, the MSPB AJ found that Petitioner had not met his burden of proving that the MSPB had jurisdiction over the appeal as a constructive suspension. In addition, the MSPB AJ stated: "The appellant has alleged that the suspension was taken because of disability discrimination and in reprisal for the equal employment opportunity activity. Because the Board's jurisdiction over the suspension action has not been established, the Board does not have jurisdiction over these allegations." The MSPB AJ's initial decision did not give Petitioner appeal rights to the Commission. Petitioner filed a petition for review by the full Board, but his petition was denied. The Board's final order did not give Petitioner appeal rights to the Commission. Petitioner then filed the instant petition.
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. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
When the MSPB denies 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 29 C.F.R. � 1614.302(b); Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990). Here, the MSPB AJ's initial decision clearly dismissed Petitioner's mixed case appeal for lack of Board jurisdiction. Accordingly, Petition No. 0320120062 is hereby 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(b) that the Agency is required to process his allegations of discrimination as a "non-mixed" matter pursuant to
29 C.F.R. � 1614.105 et seq. The Agency shall promptly notify Petitioner in writing of the right to contact an EEO Counselor within forty five (45) days of receipt of this notice and to file an EEO complaint, subject to � 1614.107. The date on which Petitioner filed his appeal with the MSPB shall be deemed to be the date of initial contact with an EEO Counselor.
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
___1/11/13_______________
Date
1 Petitioner alleged that the constructive suspension occurred from February 10, 2011 to March 13, 2011.
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0320120062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320120062