03a30064
08-22-2003
Joan M. Young, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joan M. Young v. USPS
03A30064
August 22, 2003
.
Joan M. Young,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A30064
MSPB No. AT-0752-02-0163-I-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission (EEOC or Commission) asking for review of the Merit Systems
Protection Board's (MSPB) Final Order on her case dated June 18, 2003.
Petitioner, a rural carrier, alleged that the agency placed her on
enforced leave status. Petitioner filed an EEO complaint on the matter
alleging discrimination based on disability (tendonitis/carpal tunnel
and depression) and retaliation when the agency failed to reasonably
accomodate her. Petitioner had been on non-duty status since sometime in
1999, but presented a letter from her psychiatrist that she could return
to work in August 2000 with restrictions. A short time later she submitted
another letter from a physician regarding her tendonitis stating she could
return to work with restrictions. However, she never returned to work.
The agency forwarded the EEO investigative file to petitioner, but there
is no information about a final agency decision being issued. Rather,
petitioner appears to have appealed directly to the MSPB after receiving
the investigative file. Thereafter the MSPB issued the initial decision
dismissing the appeal for lack of jurisdiction. Petitioner sought review
by the full Board, but her petition was denied. Neither the initial
decision nor the Board's final order gave petitioner appeal rights to
the Commission.
When the MSPB has denied 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
will be considered a "non-mixed" matter and processed accordingly.
See generally Schmitt v. Department of Transportation, EEOC Appeal
No. 01902126 (July 9, 1990); Phillips v. Department of the Army, EEOC
Request No. 05900883 (October 12, 1990); 29 C.F.R. �1614.302(c)(2)(i) and
(ii). Petition No. 03A30064 hereby is administratively closed, and the
matter is referred to the agency for further processing as outlined below.
NOTICE TO PARTIES
Petitioner is advised that by operation of 29 C.F.R. �1614.302(c)(2)(ii),
the agency is required to process the allegation of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. �1614.109 et seq. The agency
shall acknowledge to the petitioner that it has received the remanded
matter within thirty (30) days of the date this decision becomes final.
If it has not already done so, the agency shall issue to the petitioner
a copy of the investigative file and also shall notify the petitioner of
the right to a hearing before an EEOC Administrative Judge within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the petitioner requests a final decision without a hearing, the agency
shall issue a final decision within sixty (60) days of receipt of the
petitioner's request. Petitioner has 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 this decision is received.
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 22, 2003
_________________
Date