Michael D. Allen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 18, 2001
01A04658_r (E.E.O.C. Dec. 18, 2001)

01A04658_r

12-18-2001

Michael D. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michael D. Allen v. U.S. Postal Service

01A04658

December 18, 2001

.

Michael D. Allen,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A04658

Agency No. DA-0012-00

DISMISSAL OF APPEAL

EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may

appeal the final decision of the agency, the arbitrator or the Federal

Labor Relations Authority on a grievance when an issue of employment

discrimination was raised in a negotiated grievance procedure that

permits such issues to be raised. A grievant may not appeal under

this part, however, when the matter initially raised in the negotiated

grievance procedure is still ongoing in that process, is in arbitration,

is before the FLRA, is appealable to the Merit Systems Protection Board

(MSPB) or if 5 U.S.C. 7121(d) is inapplicable to the involved agency. Id.

On July 28, 1999, complainant filed an appeal with the Commission

regarding the agency's decision at Step 2 of the grievance procedure.

However, because the United States Postal Service is not covered by 5

U.S.C. �7121, complainant has no right to appeal to the Commission from

that decision. See Jones v. U.S. Postal Service, EEOC Appeal No. 02A00003

(April 6, 2000).

Accordingly, the appeal is DISMISSED.<1>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 18, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Commission records reflect that Allen v. U.S. Postal Service, EEOC Appeal

No. 02A00005, which relates to the same matter addressed in the instant

appeal, was administratively closed by the Commission on August 23, 2000.