01975932_r
01-22-1999
Willie D. Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Willie D. Davis, )
Appellant, )
)
v. ) Appeal No. 01975932
) Agency No. 4D-280-1022-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. Appellant received the final agency decision
on July 7, 1997. The appeal was postmarked July 28, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
Appellant initiated contact with an EEO Counselor on November 6, 1995.
On April 24, 1996, appellant filed a formal EEO complaint wherein he
alleged that he was discriminated against on the bases of his race
(African-American) and in reprisal for previous EEO activity when
during October 1995, management did not rescind a Notice of Removal
and reinstate him as a transitional employee, and treat the period of
time between his removal and reinstatement as uninterrupted employment
pursuant to a grievance arbitration award.
The record reveals that on August 19, 1993, appellant, a transitional
employee, was issued a Notice of Removal. Appellant subsequently filed
a grievance. On December 30, 1994, an arbitration award sustained the
grievance and directed the agency to rescind the Notice of Removal,
and reinstate appellant as a transitional employee. Further, the agency
was instructed to treat the period of time between appellant's removal
and reinstatement as uninterrupted employment for the purposes of all
rights and privileges that may accrue to a transitional employee.
By letter dated December 6, 1995, the agency offered appellant a
transitional carrier position in Charlotte, North Carolina. Appellant
declined the agency's offer. Appellant stated that since his removal, he
has obtained a position in the private sector that affords him benefits
that he did not receive with the agency. According to appellant, the
agency's job offer did not include paying him for the period between
his removal and potential reinstatement.
In its final decision, the agency dismissed appellant's complaint on
the grounds of mootness. The agency determined that appellant
was offered employment but he refused to accept the agency's offer.
According to the agency, appellant declined the offer because he has
obtained a career position with an electronics manufacturer that provides
him with health benefits, education, vacation time, and 401K retirement
benefits. The agency concluded that the instant complaint is moot as
there is no reasonable expectation that the alleged discrimination is
likely to recur. Thereafter, appellant filed the instant appeal.
Upon review, we find that appellant's complaint is more appropriately
analyzed in terms of whether it states a claim within the purview of
the EEO process. EEOC Regulation 29 C.F.R. �1614.107(a) provides that
an agency may dismiss a complaint which fails to state a claim pursuant
to 29 C.F.R. �1614.103. For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title VII
(discrimination on the bases of race, color, religion, sex and national
origin), the ADEA (discrimination on the basis of age when the aggrieved
individual is at least 40 years of age) and the Rehabilitation Act
(discrimination on the basis of disability) shall be processed in
accordance with Part 29 C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. The Commission's Federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Appellant alleged
that he was discriminated against when the agency failed to adhere to an
grievance arbitration award. We find that appellant's complaint is not
within the purview of the EEO process because the complaint involves the
enforcement of a grievance arbitration award. The grievance process is
the proper forum for enforcement of the arbitration award. Accordingly,
we find that appellant's complaint fails to state a claim, and the final
agency decision is hereby AFFIRMED for the reasons set forth herein.
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)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
Jan. 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations