03A30018
03-13-2003
Anthony Miller, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Anthony Miller v. United States Postal Service
03A30018
March 13, 2003
.
Anthony Miller,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Petition No. 03A30018
MSPB Nos. AT-0752-02-0044-I-1, AT-0752-02-0550-I-1
DECISION
On October 22, 2002, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC) asking for review of a Final
Order issued by the Merit Systems Protection Board (MSPB) concerning his
claim of discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Petitioner,
a Letter Carrier at the agency's Marietta Post Office, alleged that
he was discriminated against on the bases of race (African-American)
and reprisal when:
(1) he was removed from his position on August 20, 1997.
The record reveals that petitioner was given a notice of removal dated
August 15, 1997, and was removed on August 20, 1997. The record shows
that petitioner contacted an EEO counselor on August 19, 1997.
The records shows petitioner filed a mixed case appeal with the MSPB (MSPB
Docket No. AT-07552-97-1020-I-1) on September 17, 1997, regarding the
removal issue and later withdrew the appeal on January 28, 1998, to pursue
the removal issue through the agency grievance-arbitration procedure.
Petitioner's grievance was denied by an arbitrator on August 25, 1998.
Thereafter, on September 28, 1998, the record shows that petitioner filed
an appeal with the MSPB contesting the previous withdrawal of his MSPB
appeal. In his initial decision, the MSPB Administrative Judge (AJ) found
that the petitioner voluntarily withdrew the previous appeal and dismissed
his appeal. The MSPB's final order upholding the initial decision was
issued on July 26, 2001. (MSPB Docket No. AT-0752-98-1143-I-1).
Petitioner filed a formal EEO complaint concerning the removal issue on
January 29, 1998. Petitioner requested a hearing and on December 31,
1999, the EEOC AJ dismissed the complaint because it was a mixed case
over which the Commission lacked jurisdiction. Without a final agency
decision (FAD) and based upon the AJ's dismissal, petitioner filed
a mixed case appeal with the MSPB on January 4, 2000. (MSPB Docket
No. AT-0752-00-0259-I-1). The AJ's initial decision dismissing the
appeal for petitioner's failing to timely file the appeal was upheld by
the MSPB in its final order dated July 26, 2001. Based on the final
order, petitioner filed EEOC Petition No. 03A30019 which is pending
before the Commission.
Based upon petitioner's still-pending EEO complaint, the agency issued a
FAD on April 24, 2002, dismissing his complaint based upon his election
to pursue the matter to the MSPB prior to his filing a complaint of
discrimination with the agency. Petitioner filed another MSPB appeal
based upon the FAD. (AT-0752-02-0044-I-1, AT-0752-02-0550-I-1). In his
initial decision, the MSPB AJ ruled that the board lacked jurisdiction
due to the two previous appeals petitioner had filed with the MSPB.
The initial decision became a final board order on September 23, 2002.
Petitioner filed the instant petition on October 22, 2002, based on that
final order.
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 procedural matters decided by
the Board, as is the case here, where there are no discrimination claims
within the Commission's jurisdiction addressed by the Board. Because
the MSPB decisions 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 13, 2003
__________________
Date