03A2009192
09-30-2002
Harry J. McCue, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Harry J. McCue v. United States Postal Service
03A20091 & 03A20092
September 30, 2002
.
Harry J. McCue,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition Nos. 03A20091 & 03A20092
MSPB Nos. BN-3443-02-0002-I-1 & BN-3443-02-0002-I-1
DENIAL OF CONSIDERATION
On August 19, 2002, petitioner filed timely petitions with the Equal
Employment Opportunity Commission asking for review of two Final Orders
issued by the Merit Systems Protection Board (MSPB) concerning his claim
that he was discriminated against due to his disability in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. when his request for a reasonable
accommodation was not granted and he was therefore forced to resign.
The petitions are hereby consolidated for the sake of administrative
economy.
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. Here, the MSPB denied jurisdiction over petitioner's appeal
and did not address any matters within the Commission's jurisdiction.
Accordingly, the Commission has no jurisdiction to review petitioner's
case. See Sonnier v. Department of the Air Force, EEOC Petition
No. 03A00024 (January 21, 2000). 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 should be considered a �nonmixed
matter� and processed accordingly.<1> See Rainey v. Department of the
Interior, EEOC Petition No. 03940108 (June 23, 1994). The Commission
therefore denies petitioner's petitions 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
September 30, 2002
Date
1 Commission regulations require that when the
MSPB dismisses a mixed case appeal for jurisdictional reasons, the agency
shall promptly notify the individual in writing of his right to contact
an EEO counselor with 45 days of receipt of this notice and to file an EEO
complaint, subject to 29 C.F.R. � 1614.107. See 29 C.F.R. � 1614.302(b).