01995697
10-06-1999
Matthew Mataele, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Matthew Mataele v. United States Postal Service
01995697
October 6, 1999
Matthew Mataele, )
Appellant, )
)
v. ) Appeal No. 01995697
) Agency No. 1-E-841-0004-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
On July 6, 1999, appellant filed an appeal with this Commission from
an arbitrator's decision, dated June 23, 1999. The Commission has
jurisdiction over appeals from an arbitrator's final decision when an
issue of employment discrimination was raised in a negotiated grievance
process that allows allegations of discrimination to be raised, but
that requires the complainant to proceed under either the grievance
or statutory EEO process, but not both. See 29 C.F.R. �1614.401(c).
The collective bargaining agreement between appellant's union and the
agency, however, does not require complainants to elect a forum; it allows
complainants to raise discrimination allegations in both the EEO and
negotiated grievance processes. EEOC Regulation 29 C.F.R. �1614.401(c)
states, in part, that a grievant may not file an appeal of an arbitrator's
decision to the Commission, if 5 U.S.C. �7121(d) does not apply to the
agency involved in the grievance. Therefore, the Commission lacks
jurisdiction over the arbitrator's decision in the present appeal.
Further, there is no evidence that the agency has issued an EEO final
agency decision from which appellant could appeal to the Commission.
Accordingly, appellant's appeal is hereby DISMISSED for lack of
jurisdiction.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
October 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations