Paul D. Millerv.USPS Petition No. 03A30071 October 16, 2003 . Paul D. Miller, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
03a30071 (E.E.O.C. Oct. 16, 2003)

03a30071

10-16-2003

Paul D. Miller v. USPS Petition No. 03A30071 October 16, 2003 . Paul D. Miller, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Paul D. Miller v. USPS

Petition No. 03A30071

October 16, 2003

.

Paul D. Miller,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 03A30071

MSPB No. CH-0752-03-0454-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) decision on his case dated June 24, 2003.

Petitioner was removed from his Letter Carrier position for failure to

maintain an assigned schedule and use of unauthorized overtime. Petitioner

filed a mixed case complaint alleging discrimination based on age,

disability, and retaliation. The agency investigated the matter

and issued a final agency decision finding no discrimination, giving

petitioner appeal rights to the MSPB. Petitioner appealed to the MSPB.

Thereafter, the MSPB issued an initial decision dismissing the appeal

for lack of jurisdiction because there was a grievance settlement

changing the removal to a suspension. Petitioner then filed the instant

petition, although the decision did not give 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. 03A30071 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.

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

October 16, 2003

_________________

Date