0220080009
07-17-2008
Agency.
Paul Casarez,
Grievant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0220080009
Agency No. GO1N4GD07162691
DISMISSAL OF APPEAL
By Notice of Appeal postmarked May 14, 2008, grievant filed an appeal
with this Commission from the September 3, 2007 arbitrator's decision
on a grievance that he filed with the agency. The arbitrator's decision
upheld grievant's removal from the agency on the charge of "Improper
Conduct-Drinking Alcohol While On Duty."
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may
appeal the decision of an arbitrator on a grievance when an issue
of employment discrimination was raised in a negotiated grievance
procedure that permits such issues to be raised. In the instant case,
there is no evidence in the record that grievant raised issues of
employment discrimination under the statutes enforced by this Commission
in connection with his grievance over his removal. The arbitrator's
decision does not address any allegations of discrimination and, on
appeal, grievant has not argued that he raised discrimination claims
which were not addressed during the arbitration.1 Therefore, the
Commission finds that it has no jurisdiction to review the decision
of the arbitrator in this matter. Accordingly, complainant's May 14,
2008 appeal is hereby dismissed.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
July 17, 2008
__________________
Date
1 The arbitrator's decision did not give complainant appeal rights to the
Commission. As such, the Commission declines to address the timeliness
of the appeal.
2 The Commission notes that complainant also filed an EEO complaint
on the issue of his removal, which is currently pending. EEOC Appeal
No. 0120082490.
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0220080009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0220080009