Agency.

Equal Employment Opportunity CommissionApr 24, 2014
0220120003 (E.E.O.C. Apr. 24, 2014)

0220120003

04-24-2014

Agency.


Grievant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0220120003

Agency No. G06C-4G-D10124471/CM10129C

DISMISSAL OF APPEAL

Grievant timely initiated an appeal of a final decision by an arbitrator concerning his grievance of unlawful employment discrimination. The issue on appeal is whether the Commission has appellate jurisdiction over the grievance grievant filed regarding a notice of proposed removal dated February 1, 2009.

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 Grievant 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 (USPS) is one of the federal agencies not covered by 5 U.S.C. � 7121(d). Further, USPS employees are not required to choose between the grievance or EEO process when raising discrimination claims. 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). Therefore, the EEO process is the proper forum for the resolution of Grievant's discrimination claims.

We note that in the case at hand, Grievant filed an EEO complaint on the same matter alleging discrimination which has been address by the Commission. See Mitchell v. U.S. Postal Service, EEOC Appeal No. 0120112416 (January 19, 2012).

Accordingly, the Commission lacks jurisdiction over the grievance, so it is hereby DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this case if the Grievant or the Agency submits a written request containing arguments or evidence which tend 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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).

GRIEVANT'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 (Z0610)

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

April 24, 2014

__________________

Date

2

0220120003

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0220120003