0320110012
02-18-2011
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. 0320110012
MSPB No. SF-0752-09-0694-I-1
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 March 24, 2009 to October 31, 2009, at which
time he retired. Petitioner based his claim of constructive suspension
on the Agency's action of removing him from administrative leave pursuant
to an earlier MSPB decision issued on June 5, 2009.
On October 26, 2009, an MSPB Administrative Judge (AJ) dismissed
the appeal without prejudice because Petitioner had a petition
pending before the Board which dealt with the MSPB decision (MSPB
No. SF-0753-09-0163-B-1) involving his constructive suspension prior to
March 24, 2009. Petitioner sought review of the AJ's decision by the full
Board. The Board found the matter was moot because its decision in MSPB
No. SF-0753-09-0163-B-1 dealt with Petitioner's constructive suspension
from December 9, 2008 through October 31, 2009.1 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 matter for mootness. 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.
Accordingly, the Commission DENIES consideration of the instant petition
for review.
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 18, 2011
__________________
Date
1 The matter was addressed by the Commission in Mojarro v. USPS, Petition
No. 0320110009 (February 11, 2011), as well as in Mojarro v. USPS,
Appeal No. 0120093154 (February 11, 2011).
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0320110012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320110012