03A40089
06-29-2004
Kevin E. Patterson, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kevin E. Patterson v. United States Postal Service
03A40089
June 29, 2004
.
Kevin E. Patterson,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A40089
MSPB No. AT-0752-02-0544-I-2
DECISION
On April 25, 2004, 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 or the Board)
concerning his claim of discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. Petitioner, a Mailhandler at an agency facility in Jacksonville,
Florida, alleged that he was discriminated against on the bases of race
(African-American) and sex (male) when, effective April 19, 2002, he
was removed for failure to follow instructions.
Initially on May 23, 2002, petitioner filed a mixed case appeal with the
MSPB at the same time he filed an EEO complaint. The MSPB AJ dismissed
petitioner's appeal and advised petitioner that he could re-file his
appeal after the expiration of 120 days of the date of the filing
of his formal EEO complaint. On October 4, 2002, after the 120 days
expired and no final agency decision was issued, petitioner re-filed
his appeal with the Board. After a hearing, the Administrative Judge
found that petitioner failed to establish his claims of discrimination.
Petitioner then filed a petition for review with the Board. The Board
denied petitioner's petition for review.
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. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.<1>
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
June 29, 2004
__________________
Date
1In his petition for review, petitioner indicates that he filed an EEO
complaint alleging discrimination regarding the removal action raised in
his appeal before MSPB. The EEO complaint was consolidated with his other
pending complaints by an EEOC Administrative Judge (EEOC AJ). The EEOC AJ
dismissed the consolidated complaint without prejudice finding that the
MSPB had jurisdiction over the matter. We note that the MSPB decision
solely addressed petitioner's claims of discrimination as to the removal
action and did not address all the matters raised in his complaints before
the EEOC AJ. Therefore, we remind petitioner and the agency that those
matters not addressed by the MSPB are no longer considered to be mixed.
Thus, by operation of 29 C.F.R. �1614.302(c)(2)(ii), the agency is
required to process those EEO complaints not addressed by MSPB as a
"non-mixed" matter pursuant to 29 C.F.R. �1614.109 et seq.