0220150005
05-13-2016
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cliff C.,1
Grievant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0220150005
Agency No. G11N4GD14173617
DECISION
Grievant filed an appeal with this Commission from the decision of an Arbitrator dated November 21, 2014.
Grievant was employed by the Agency as a City Carrier Assistant at the Valley High Station in San Antonio, Texas. He was issued a Notice of Removal, dated April 1, 2014, asserting that he failed to secure his unoccupied postal vehicle containing deliverable mail. Grievant filed a grievance under the relevant collective bargaining agreement challenging the removal. The grievance eventually went to arbitration.
The Arbitrator found that Grievant was denied his right to due process under the collective bargaining agreement during the early stages of the grievance process ("Informal Step A"). As a result, the Arbitrator ordered that the notice of removal be rescinded and removed from Grievant's file, and that he be reinstated with full back pay, seniority and benefits. There is no indication that Grievant raised claims of discrimination in his grievance, and the arbitration decision did not address any discrimination or reprisal claims.2
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 the 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). Had Grievant raised discrimination claims here, we would have remanded the matter back to the Agency for processing in the EEO complaint process. However, there is no indication in the record that this was the case.
Accordingly, Grievant's appeal is 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 (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
May 13, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Grievant filed no statement in support of his appeal, and it is unclear why he is appealing as he prevailed in the arbitration.
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