0220080003
05-07-2008
Joseph Laciskey,
Grievant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0220080003
Agency No. DF-2006-R-0028
DECISION
Grievant, through his union representative, filed a timely appeal dated
October 16, 2007, with this Commission from an arbitrator's decision dated
September 12, 2007, pursuant to 29 C.F.R. � 1614.401(d). The Commission
has jurisdiction over appeals from arbitrator decisions in limited
circumstances. EEOC Regulation 29 C.F.R. � 1614.401(d) provides that
"a grievant may appeal the final decision of the agency, the arbitrator
or the Federal Labor Relations Authority (FLRA) on the grievance when an
issue of employment discrimination was raised in a negotiated grievance
procedure that permits such issues to be raised. A grievant may not
appeal under this part, however, when the matter initially raised in
the negotiated grievance procedure is still ongoing in that process,
is in arbitration, is before the FLRA, is appealable to the MSPB or if
5 U.S.C. 7121(d) is inapplicable to the involved agency."
In response to grievant's appeal, the agency submitted a Motion to
Dismiss Request for Review of Arbitrator's Decision on November 15,
2007, in which it argued that the Commission did not currently have
jurisdiction to consider the appeal. According to the agency, the Union
representing the grievant had filed exceptions to the arbitrator's award
with the FLRA, also filed on October 16, 2007. The Union did not respond
to the agency's Motion.
As this matter is currently pending before the FLRA, it is not yet
ripe for the Commission to review. Therefore, we DISMISS the appeal,
without prejudice, for lack of jurisdiction at this time.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z0408)
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
5-7-08
__________________
Date
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0220080003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0220080003