0220150012
09-01-2016
Wade K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wade K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0220150012
Agency No. J11N-4J-D5052837
DECISION
On August 14, 2015, Grievant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning a grievance identified as Agency Grievance No. J11N-4J-D5052837. According to the Agency's response letter of September 23, 2015, the grievance was pending arbitration.
At the time of events giving rise to this complaint, Grievant worked as a City Carrier Assistant at the Agency's facility in Mattoon, Illinois.
Grievant was issued a Proposed Notice of Removal, dated December 14, 2014, for "Failure to Maintain a Regular Work Schedule and Failure to Follow Instructions." Apparently he was subsequently removed.2 Grievant filed a grievance under the relevant collective bargaining agreement challenging the proposed removal. There is no indication that Grievant raised claims of discrimination in his grievance. The only grievance decision in the record is a January 13, 2015 Step B Decision, which held there was an "Impasse" and gave Grievant the right to proceed to arbitration.
The Commission has jurisdiction over appeals from grievance decisions in limited circumstances. EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may appeal to the Commission from a final decision of the agency, an arbitrator, or the Federal Labor Relations Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised, but requires the complainant to proceed on the discrimination claims under either the grievance process or the EEO process, but not both. In these circumstances, the Commission will only review that portion of the decision which pertains to the Grievant's employment discrimination claim, as it does not have jurisdiction over any alleged violations of a collective bargaining agreement. See 29 C.F.R. � 1614.301(a).
However, a grievant may not appeal a grievance decision to this Commission if the agency involved is not covered by 5 U.S.C. � 7121(d). The United States Postal Service is one of the federal agencies not covered by 5 U.S.C. � 7121(d). Further, its employees are not required to choose between filing a grievance or EEO process when raising discrimination claims. Accordingly, we cannot review the grievance decision in the instant case under 29 C.F.R. � 1614.401(d).
29 C.F.R. � 1614.301(c) specifically instructs agencies that allegations of discrimination brought by an employee of an agency not covered by 5 U.S.C. � 7121(d), like the Postal Service, must be processed as EEO complaints, which may be held in abeyance during the processing of a related grievance. See also, Jordan v. United States Postal Service, EEOC Request No. 05A51226 (August 3, 2006). The Agency indicated that Grievant filed a request for EEO counseling, identified as Agency EEO No. 4J-630-0108-15. The pre-complaint counseling form indicates that Grievant was raising harassment and termination claims, and identified race (African American) and sex as bases. It cannot be determined from the record before us if the matter was dismissed or investigated. Nonetheless, that complaint is not before us at this juncture.
Given that we cannot review the instant grievance and Grievant's EEO complaint is not before us, Grievant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 1, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
2 There is no copy of the grievance file in the record. Information is taken from documents submitted by Grievant.
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