Harry J. McCue, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 30, 2002
03A2009192 (E.E.O.C. Sep. 30, 2002)

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).