0320110009
02-11-2011
Guillermo Mojarro, Petitioner, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Guillermo Mojarro,
Petitioner,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Petition No. 0320110009
MSPB No. SF0752090163B1
DENIAL OF CONSIDERATION
Petitioner filed a timely 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.
Petitioner, a Mail Processing Clerk in Upland, California, alleged
that the Agency discriminated against him on the bases of disability
and reprisal for prior protected EEO activity under Section 501 of the
Rehabilitation Act of 1973 when he suffered a "constructive" suspension
of more than 14 days from December 9, 2008 to October 31, 2009, at which
time he retired. Petitioner based his claim of constructive suspension on
the Agency's refusal to allow him to return to work before an assessment
had been made of his medical fitness for duty.
On June 5, 2009, an MSPB Administrative Judge (AJ) dismissed the matter
for lack of jurisdiction. Petitioner sought review by the Board, which
remanded the matter back to the AJ for the taking of additional evidence.
Thereafter, a hearing was held and the AJ issued a decision on June 10,
2010, again dismissing the matter for lack of Board jurisdiction because
Petitioner failed to prove that he had been subjected to a constructive
suspension. The AJ found that the Agency acted reasonably in attempting to
determine that Petitioner was medically fit to return to work, and that
its refusal to allow him to return to work before assessing his medical
ability to return was proper. The AJ noted Petitioner's persistent
refusal to give the pertinent physicians signed releases that would
enable them to share with the Agency their assessment of Petitioner's
ability to work. Thus, the AJ found Petitioner's absence voluntary. The
AJ did not address any discrimination claims.
Petitioner sought review of the AJ's decision by the full Board. The
Board upheld the initial decision's dismissal of the matter for lack
of jurisdiction. Petitioner then filed the instant petition with this
Commission.
EEOC regulations provide that the Commission has jurisdiction over
allegations of discrimination raised in connection with an action
appealable to the MSPB. 29 C.F.R. � 1614.302. Here, however, the MSPB
dismissed the appeal for lack of jurisdiction, finding that Petitioner's
absence from work was voluntary and, therefore, not a suspension. The
Commission has no jurisdiction over procedural matters of the Board.
Because the MSPB 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 instant
petition for review.1
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
February 11, 2011
__________________
Date
1 The Commission notes that a decision in a related appeal, Mojarro
v. United States Postal Service, Appeal No. 0120093154, is being issued
simultaneously. That decision remands Petitioner's discrimination claims
in this same matter back to the Agency for further processing.
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0320110009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110009