03a10052
03-16-2001
Victor A. Allen Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Victor A. Allen v. USPS
03A10052
March 16, 2001
.
Victor A. Allen
Petitioner,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 03A10052
MSPB No. AT-0752-99-0857-I-1
DENIAL OF CONSIDERATION
On February 20, 2001, Victor A. Allen (hereinafter referred to as
petitioner) filed a petition with the Equal Employment Opportunity
Commission (EEOC) regarding the Merit Systems Protection Board's (MSPB
or the Board) final decision on his case.
Petitioner, a Part-Time Letter Carrier, filed an appeal with the MSPB
alleging religious discrimination when he was removed from his position
for failure to meet the attendance requirements of his position. The
MSPB dismissed the appeal because petitioner was not a veteran with
preference eligible status. The MSPB did not address petitioner's
claims of discrimination and the decision to dismiss was upheld by
the full Board in a decision dated July 17, 2000. The Board did not
give petitioner appeal rights to the Commission. Petitioner then filed
with the United States Court of Appeals for the Federal Circuit, Appeal
No. 00-3422. In a decision dated February 8, 2001, the court affirmed
the MSPB's dismissal for lack of jurisdiction.
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). Petition No. 03A10052 hereby is administratively
closed, and the matter is referred to the agency for further processing
as outlined below.<1>
NOTICE TO PARTIES
Petitioner is advised that by operation of 29 C.F.R. �1614.302(b), the
agency is required to process his allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. �1614.105 et seq. The agency
shall notify the petitioner of the right to contact an EEO counselor
within forty-five (45) days of receipt of this decision, and to file an
EEO complaint, subject to �1614.107. The date on which the petitioner
filed the appeal with the MSPB shall be deemed the date of initial
contact with the EEO counselor. Petitioner shall 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 this decision is received.
STATEMENT OF PETITIONER'S RIGHTS
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
March 16, 2001
__________________
Date
1 The Commission notes that the court's decision references an EEO
complaint filed by petitioner, however at this time there are no appeals
from petitioner before the Commission. If petitioner's EEO complaint
includes his removal, the agency shall continue to process the matter,
rather than have petitioner file a new complaint, if it has not already
done so.