Agency.

Equal Employment Opportunity CommissionJun 14, 2005
02a50008 (E.E.O.C. Jun. 14, 2005)

02a50008

06-14-2005

Agency.


Randolph S. Koch v. Securities and Exchange Commission

02A50008

June 14, 2005

.

Randolph S. Koch,

Grievant,

v.

William H. Donaldson,

Chairman,

Securities and Exchange Commission,

Agency.

Appeal No. 02A50008

DISMISSAL OF APPEAL

Grievant filed a timely appeal with this Commission from a Step 3

decision dated January 25, 2005, denying his grievance of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his grievance,

the grievant alleged that the agency discriminated against him on the

basis of race, color, sex, religion, age, disability, and reprisal for

prior EEO activity when it committed multiple violations of Article 25,

Student Loan Repayment Program, of the SEC-NTEU Collective Bargaining

Agreement (CBA).

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,

the 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.

The record reveals that the CBA between the agency and the Union provides,

in pertinent part, that the Union has 30 days following receipt of the

Step 3 decision to formally invoke arbitration or to waive its right

to invoke arbitration. By letter dated February 25, 2005, the Union

invoked arbitration. Thus, the grievance process has not been exhausted,

and there is no final decision from the agency, an arbitrator or the

FLRA from which grievant can appeal.

Accordingly, it is the decision of the Commission to DISMISS this appeal

because it is premature.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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).

GRIEVANT'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

June 14, 2005

__________________

Date