03a60016
11-23-2005
. Richard W. DeGroat, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard W. DeGroat v. USPS
Petition No. 03A60016
.
Richard W. DeGroat,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A60016
MSPB No. NY-0752-05-0298-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 September 6, 2005.
Petitioner was a Parcel Post Distribution Clerk. Petitioner was incapable
of working because of his disability (obsessive compulsive disorder) and
was receiving benefits under the Office of Workers' Compensation Programs.
Eventually he applied for disability retirement and the agency removed him
from its rolls. Petitioner filed an EEO complaint alleging discrimination
based on disability when the agency did not accommodate him and he was
forced to apply for disability retirement (constructive discharge). The
matter was investigated and petitioner requested a hearing before an EEOC
Administrative AJ (AJ). The EEOC AJ dismissed the matter for failure to
state a claim, and the agency's final action did the same. Petitioner
filed an appeal with the Commission which found the matter did state a
claim and noted it appeared to be a mixed case. In accordance with the
Commission's Order<1>, the agency then issued a final agency decision
finding no discrimination and 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,
finding that petitioner did not have the right to appeal to the Board
because he was not a preference eligible veteran. Petitioner then filed
the instant petition.
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. 03A50011 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
sixty (60) 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
November 23, 2005
_________________
Date
1See DeGroat v. USPS, Appeal No. 01A42287 (March 7, 2005).