03A30061
08-28-2003
Donnie L. Bloomer, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donnie L. Bloomer v. USPS
03A30061
August 28, 2003
.
Donnie L. Bloomer,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A30061
MSPB No. DE-3443-00-0064-B-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC or Commission) asking for review of the final decision
of the Merit Systems Protection Board (MSPB or Board) on his case. The
petition is governed by the Civil Service Reform Act of 1978 and EEOC
Regulations at 29 C.F.R. �1614.101et seq.
Petitioner alleged the agency discriminated against him on the basis
of his prior military service when it removed him from his position as
a mailhandler for failure to disclose medical information on a medical
examination and assessment form. The record indicates petitioner had
previously filed an EEO complaint on the matter which was found to be
untimely. He also filed a grievance on the matter and appealed to the
MSPB, but his appeal was found to be untimely and was dismissed.<1>
The MSPB had jurisdiction under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). Thereafter petitioner refiled
an appeal and the MSPB AJ issued an initial decision finding that
petitioner did not meet his burden under USERRA and upheld his removal
on March 2, 2002. Petitioner filed a petition with the full Board. The
full Board denied the petition for review on October 17, 2002. Petitioner
filed a petition for review with the Commission on July 8, 2003 arguing
that he was not given appeal rights to the Commission with respect to
the initial decision of November 19, 1999 by the Board finding that his
appeal was untimely and retaining only his USERRA claims. He included a
copy of the Board's final order of October 17, 2003. He sought a waiver
of the time limits.
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 has no jurisdiction over procedural matters decided
by the Board, as is the case here, where there are no discrimination
claims within the Commission's jurisdiction addressed by the Board.
Because the MSPB decisions did not address any matters within the
Commission's jurisdiction, the Commission has no jurisdiction to review
petitioner's case. Consequently, the Commission denies consideration of
the petition for review.
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
August 28, 2003
__________________
Date
1Bloomer v. USPS, MSPB Docket Number DE-0752-99-0343-I-1 (November 19,
1999), petition denied August 11, 2000. However, petitioner's USERRA
claims were preserved.