01985255
09-09-1999
Thien K. Chau, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thien K. Chau v. United States Postal Service
01985255
September 9, 1999
Thien K. Chau, )
Appellant, )
) Appeal No. 01985255
v. ) Agency No. 1F933000198
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The FAD was dated May 19, 1998.
The appeal was postmarked on June 17, 1998. Accordingly, the appeal is
timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant's complaint was properly
dismissed for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on November 14, 1997, alleging
discrimination on the basis of sex (male). In answer to the question
on the formal complaint form which asked appellant how he believed
he was discriminated against, appellant wrote, "I feel I was treated
unfair because I am not female. Favoritism wasn't in my favor."
To clarify the meaning of appellant's complaint, we note a letter
written by appellant to his EEO Counselor, also dated November 14, 1997,
in which appellant stated that he believed that he should have received
the same union grievance settlement that a female co-worker received.
In her settlement, appellant's co-worker was returned to her automation
craft with no loss of seniority or days off. Appellant believed that
he was discriminated against, on the basis of his gender, because his
union grievance settlement returned him to his craft, but with a loss
of seniority and days off.
In its FAD, the agency dismissed appellant's complaint for failure to
state a claim, asserting that the Commission does not have jurisdiction
over Postal Service grievance procedures and arbitration. This appeal
followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. The Commission has held that although we will review
allegations of discrimination that the agency's grievance process is
administered in a discriminatory fashion, or that a grievance resolution
is discriminatorily implemented, we will not review allegations related to
how an employee's grievance is ultimately decided. See Bowie v. United
States Postal Service, EEOC Request No. 05910802 (February 4, 1992).
Furthermore, the Commission has held that allegations of discrimination
based on the settlement of a grievance or an agency's refusal to settle
are not within the purview of the EEO process. See Gwyn v. United States
Postal Service, EEOC Request No. 05900844 (October 4, 1990).
In the instant case, appellant is alleging that he was discriminated
against in the settlement of his grievance. Since this situation is
not within the purview of the EEO process, we find that appellant's
complaint fails to state a claim.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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. 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 (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:
September 9, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations