Agency.

Equal Employment Opportunity CommissionMay 7, 2008
0220080003 (E.E.O.C. May. 7, 2008)

0220080003

05-07-2008

Agency.


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