                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-3010

                               CHARLES R. MCCOY,

                                                          Petitioner,

                                         v.

                       UNITED STATES POSTAL SERVICE,

                                                          Respondent.


      Charles R. McCoy, of Allen, Texas, pro se.

      Joseph E. Ashman, Steven J. Abelson, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of Washington, DC, for
respondent. With him on the brief were Jeanne E. Davidson, Director, and Bryant G.
Snee, Deputy Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3010

                               CHARLES R. MCCOY,

                                                     Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                                     Respondent.

Petition for review of the Merit Systems Protection Board in DA-0752-07-0263-B-1.

                          __________________________

                            DECIDED: February 9, 2009
                          __________________________

Before LINN, PROST, and MOORE, Circuit Judges.

PER CURIAM.

      Charles R. McCoy (“McCoy”) seeks review of a final decision of the Merit

Systems Protection Board (“Board”), which affirmed his removal from the United States

Postal Service (“the agency”). McCoy v. U.S. Postal Serv., No. DA-0752-07-0263-B-1

(M.S.P.B. June 16, 2008) (“Decision”), review denied, McCoy v. U.S. Postal Serv., No.

DA-0752-07-0263-B-1 (M.S.P.B. Sept. 18, 2008).       Because we lack jurisdiction to

review McCoy’s petition, we dismiss.

      McCoy was removed from his position as a maintenance custodian with the

agency following an altercation in which he allegedly threatened the life of his

supervisor. McCoy filed a grievance pursuant to the collective bargaining agreement

between his union and the agency.        The grievance was eventually appealed to
arbitration. After a hearing, during which McCoy was represented by a union official,

the arbitrator issued a decision, concluding that the agency’s Notice of Proposed

Removal was issued for just cause.        McCoy subsequently filed an appeal with the

Board, challenging the agency’s removal action and for the first time alleging that his

removal resulted from unlawful racial discrimination. Specifically, McCoy alleged that

he was disciplined disparately from similarly situated white employees under the

agency’s “zero tolerance” policy toward violence in the workplace. Following Board

proceedings unrelated to the instant appeal, the administrative judge concluded that the

doctrine of collateral estoppel barred McCoy’s attempt to relitigate the agency’s removal

action, Decision at 16-17, and that McCoy failed to prove his affirmative defense of

racial discrimination, id. at 20.    The full Board denied review, and McCoy timely

appealed to this court.

       “In Williams v. Department of the Army, 715 F.2d 1485 (Fed. Cir. 1983), this

court held that it had no jurisdiction over the merits of a mixed case, i.e., one involving

an adverse action and a claim of discrimination. However, a case which was presented

to the [Board] as a mixed case will be heard by this court if the petitioner files an explicit

waiver of the claim of discrimination.” Davidson v. U.S. Postal Serv., 24 F.3d 223, 223-

24 (Fed. Cir. 1994). McCoy purported to file such a waiver in this case, checking the

box on his Statement Concerning Discrimination pursuant to Federal Circuit Rule of

Appellate Procedure 15(c) indicating that “[n]o claim of discrimination by reason of race,

sex, age, national origin, or handicapped condition has been or will be made in this

case.” Notwithstanding McCoy’s notation of waiver, the sole issue raised in his petition

is the Board’s decision with respect to his claim of racial discrimination. See Pet’r’s




2009-3010                                 2
Informal Br. at 1 (challenging “disparity of treatment”).       Because McCoy has not

presented any arguments that are divorced from his discrimination claim, we lack

jurisdiction to review his petition. As a result, we must dismiss.

                                          COSTS

       No costs.




2009-3010                                 3
