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