03A20090_r
03-04-2003
Wendell P. Tyler, Petitioner, v. Kay Coles James Director, Office of Personnel Management, Agency.
Wendell P. Tyler v. Office of Personnel Management
03A20090
March 4, 2003
.
Wendell P. Tyler,
Petitioner,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Petition No. 03A20090
MSPB No. CH-844E-02-0087-I-1
DENIAL OF CONSIDERATION
Petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of a Final Order issued by the Merit Systems
Protection Board (MSPB) dated July 18, 2002. On November 21, 1995, the
agency found petitioner disabled for his position of Postal Service Clerk
due to a psychiatric condition. On March 17, 2001, petitioner requested
that the agency find him recovered from his disability. The agency, on
March 31, 2001, found him recovered. Complainant, on April 13, 2001,
requested reconsideration of the agency's decision. On September 27,
2001, the agency issued a decision finding him recovered and found
that he was no longer eligible for continued disability payments.
Complainant appealed that decision to the MSPB, and as a remedy,
requested reinstatement arguing that his removal was invalid since he is
now considered recovered. The MSPB issued an initial decision on April
22, 2002 dismissing the appeal for failure to state a cause of action
for which relief may be granted. Specifically, the MSPS found that the
finding of petitioner to be recovered does not invalidate prior decisions
of the MSPB or agency, which previously addressed the issue of removal.
On July 18, 2002, the MSPB issued a Final Order denying petitioner's
petition for review of the April 22, 2002 decision. Petitioner now
petitions to the Commission from the MSPB's July 18, 2002 decision.<1>
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 has no jurisdiction over matters decided
by the MSPB, as is the case here, where there are no discrimination
claims within the Commission's jurisdiction addressed by the MSPB.
A determination as to whether petitioner is recovered and is no longer
eligible for continued disability payments is not a basis over which the
Commission has jurisdiction. Because the MSPB decision did not address
any matters within the Commission's jurisdiction, the Commission has no
jurisdiction to review petitioner's case. Consequently, the Commission
denies consideration of the petition for review.
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 4, 2003
__________________
Date
1The Commission notes that petitioner was
not given appeal rights to the EEOC from either MSPB decision.