03990137
12-06-1999
Petitioner, )
Maurice D. Marcure, Jr. v. United States Postal Service
03990137
December 6, 1999
Maurice D. Marcure, Jr., )
Petitioner, )
) Appeal No. 03990137
v. ) MSPB No. SF-0752-99-0022-I-1
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF CONSIDERATION
On August 20, 1999, Maurice D. Marcure, Jr. (petitioner) timely filed a
petition with the Equal Employment Opportunity Commission (the Commission)
for review of the Final Order of the Merit Systems Protection Board
(MSPB or the Board) issued July 22, 1999, concerning an allegation of
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
For the reasons set forth herein, petitioner's petition is denied.
Petitioner filed an appeal with the MSPB on September 29, 1998, alleging,
in relevant part, that he was discriminated against on the bases of his
disability, age, and reprisal when he was removed from his position
of Distribution Clerk, effective January 14, 1992. In an initial
decision dated January 29, 1999, the MSPB Administrative Judge (AJ)
dismissed petitioner's appeal on the grounds that it was untimely filed.
In making this determination, the MSPB AJ found that petitioner was
advised that he could appeal the agency's action to both the Board and
through the grievance procedure.<1> Petitioner was told that he had the
right to appeal to the MSPB no later than twenty (20) days after the
effective date of his removal. The MSPB AJ found that petitioner was
made aware of his right to appeal his removal to the Board but failed
to do so and failed to provide circumstances beyond his control which
may have affected his ability to comply with the time limit. Therefore,
the MSPB AJ dismissed petitioner's appeal.
Petitioner appealed the initial decision to the Board. In its Final
Order dated July 22, 1999, the Board denied petitioner's petition for
review finding that his appeal failed to meet the standard of review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that
makes a determination on allegations of discrimination. 29 C.F.R. �
1614.303 et seq. Petitioner is asking the Commission to review the
MSPB's decision that dismissed his MSPB appeal on the grounds that it
was untimely filed. However, because the MSPB's decision went to the
timeliness of petitioner's appeal with the MSPB and not an affirmative
defense of discrimination, the Commission does not have jurisdiction over
petitioner's petition. Therefore, the Commission DENIES petitioner's
petition for review.
STATEMENT OF PETITIONER'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (W1092)
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 (Z1092)
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:
Dec. 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the agency, and MSPB on:
1 Petitioner elected to pursue his appeal through the negotiated grievance
procedure and did not appeal his removal to the MSPB at that time.