0320090062
06-24-2009
Jerayer Mouradian, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerayer Mouradian,
Petitioner,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Petition No. 0320090062
MSPB No. SF0353080486I1
DECISION
Petitioner filed a petition with the Equal Employment Opportunity
Commission asking for review of an Initial decision 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner did not appeal the Initial decision to the full Board, so it
became the Board's final decision.
On May 15, 2008, petitioner filed an appeal with the MSPB alleging that
he was discriminated against on the bases of national origin (Syrian),
sex (male), and disability (lower lumbar back) when the agency did not
make a job offer restoring him to duty after partial recovery from a
work-related injury accepted for coverage by the Office of Workers'
Compensation Programs (OWCP).1
In his decision, the MSPB Administrative Judge (AJ) dismissed the matter
for lack of jurisdiction. The AJ first found that petitioner was able
to show that he received OWCP payments on an ongoing basis since 2002,
and that his physicians released him to return to work. However, the AJ
went on to find that petitioner declined two offers of employment made
in November 2005 and June 2006, and did not show that he had requested
to be restored to a job. The AJ went on to state that even if petitioner
requested restoration, the agency provided sufficient evidence of its
efforts to find suitable work for petitioner. Finally the AJ found that
petitioner did not show that the agency was arbitrary or capricious in
denying his later request for restoration dated May 6, 2008. The AJ did
not address any of petitioner's discrimination claims.
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. Dept. of Transportation, EEOC Appeal No. 01902126
(July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883
(October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance
with these principles, Petition No. 0320090062 hereby is administratively
closed, and the matter is referred to the agency for further processing
as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(c)(2)(ii),
the agency is required to process his allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The agency
shall acknowledge to petitioner that it has received the remanded matter
within thirty (30) days of the date this decision becomes final. The
agency shall resume processing of petitioner's complaint from the
point where processing ceased, and upon completion, shall issue to the
petitioner a copy of the investigative file and also 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 petitioner requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of petitioner's request.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 24, 2009
__________________
Date
1 Petitioner initially filed a mixed case complaint which the agency
dismissed for failure to state a claim. Petitioner appealed the dismissal
to this Commission, which reversed the agency's decision and remanded
the matter for further processing. EEOC Appeal No. 0120083813 (December
18, 2008). However, the agency ceased processing the complaint based on
petitioner's filing of the instant appeal to MSPB on the same matter.
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0320090062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090062