Appellant, v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, Agency. Request No. 05930106 Appeal No. 01922675 Agency No. 5-D-1085-91 Hearing No. 340-91-3950X June 24, 1993 DECISION TO REOPEN INTRODUCTION On October 15, 1992, Appellant (hereinafter referred to as appellant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Appellant v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service (Western Region), EEOC Appeal No. 01922675 (September 16, 1992). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and re-consider any previous decision. 29 C.F.R. 1613.235(a). The party requesting reopening must submit written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b): 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy), and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand). Appellant does not specify the criteria on which he bases his request. For the reasons set forth herein, appellant's request is denied. The Commission on its own motion, however, reopens the previous decision. [FN1] ISSUE PRESENTED The issue presented is whether appellant stated a claim within Commission regulations. BACKGROUND Appellant filed an EEO complaint in April 1991 alleging he was discriminated against on the bases of race (Filipino), color (brown), national origin (Philippine Islands), age (40) and disability (mental) when on February 15, 1991, at an arbitration hearing on his notice of removal of June 1990, the agency denied him an extension to provide a psychiatric evaluation from his treating physician in the Philippines. The arbitrator affirmed the removal, which was for absence without leave (AWOL) for almost eight months, and appellant was removed. The arbitration decision did not discuss employment discrimination. Appellant indicated that the arbitration process properly went only to contract issues. As relief, appellant wrote in his EEO complaint that he sought reinstatement. Following an investigation, the agency issued a proposed disposition finding no discrimination. Appellant requested a hearing before an EEOC Administrative Judge (AJ). Applying 29 C.F.R. 1613.218(g), the AJ did not conduct a hearing on the grounds that there were no issues of material fact. The AJ found that appellant failed to establish a prima facie case of discrimination on any basis because his complaint allegation was outside the jurisdiction of the EEOC. The AJ reasoned that the arbitrator is the authority responsible for granting continuances for the purpose of producing new evidence in her forum, and the agency did not have the authority to rule on continuances. [FN2] The AJ further reasoned that the EEOC has no jurisdiction to interfere with the rulings of an arbitrator, particularly in areas touching the arbitrator's authority to make procedural rulings. The agency issued a final agency decision (FAD) adopting the recommended decision. The previous decision found that appellant failed to establish a prima facie case of discrimination on any basis because he failed to show he was treated differently from similarly situated employees outside his protected groups. Specifically, the previous decision stated that while eight comparative employees were issued discipline, there was no evidence that any were granted or denied an extension to provide a psychiatric evaluation to an arbitrator during a grievance procedure. Next, responding to an argument appellant made on appeal, the previous decision found that the AJ did not deprive herself of jurisdiction to render a decision on the merits of appellant's complaint. The previous decision explained that the AJ found there was no prima facie case of discrimination because appellant was not aggrieved under any statute administered by the EEOC. In his request to reopen, appellant merely states that he is dissatisfied with the previous decision. He does not present any evidence or argument to support his request. ANALYSIS AND FINDINGS As noted above, the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) has been met. In order for a case to be reopened, the request must contain specific information which meets the criteria referenced above. In the present case, appellant does not present any written argument or evidence to support his request. We note that a request to reopen is not a form of a second appeal. Appellant's mere articulation of a request does not establish any of the criteria for reopening a previous decision. Accordingly, appellant's request to reopen is denied. The Commission on its own motion, however, reopens the previous decision. An EEO complaint which alleges that discriminatory actions have been taken to influence the outcome of a decision rendered under a negotiated grievance procedure is outside the purview of EEOC regulations and should be rejected. Except in limited circumstances, the EEO process is not a mechanism to attack negotiated grievance procedures. Ellis v. United States Postal Service, EEOC Request No. 05920011 (March 12, 1992). Appellant's complaint represents a collateral attack on grievance procedures negotiated in a collective bargaining agreement, i.e., the arbitration hearing and subsequent arbitrator's decision. Appellant charges, in effect, that the agency went along with or encouraged the arbitrator's ruling denying a continuance to submit evidence. As relief, appellant requested reinstatement of his job, which is the very same relief he hoped to achieve through the grievance arbitration. In short, the obvious aim of appellant's complaint is to achieve reinstatement of his position by attacking the decision of the arbitrator. As appellant's complaint represents a collateral attack on the arbitration decision, it does not state a claim under EEOC regulations. Ellis. The previous decision erred when it sought to make a determination on whether appellant was discriminated against since he did not state a justiciable claim under EEOC regulations. Also, while the AJ properly concluded that the EEOC does not have jurisdiction over appellant's complaint, she erred when she determined that appellant did not establish a prima facie case of discrimination for this reason. A prima facie case goes to whether there is an inference of discrimination, not jurisdiction. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). As appellant's complaint does not state a claim, the issue of whether there is an inference of discrimination should not have been reached. The previous decision is affirmed, as modified herein. CONCLUSION After a review of appellant's request to reopen, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet any of the criteria of 29 C.F.R. 1613.235(b). It is therefore the decision of the Com-mission to deny appellant's request. The Commission on its own motion, however, reopens the previous decision. The decision of the Commission in EEOC Appeal No. 01922675, as modified herein, remains the Commission's final decision in this matter. RIGHT TO FILE A CIVIL ACTION (P/A1092) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of 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. 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: Frances M. Hart Executive Officer Executive Secretariat [FN1]. 29 C.F.R. Part 1614 became effective October 1, 1992. This rule revises the way federal agencies and the Equal Employment Opportunity Commission will process administrative complaints and appeals of employment discrimination filed by federal employees and applicants for federal employment. However, since appellant received request to reopen rights in the previous decision prior to the effective date of Part 1614, the Part 1613 regulations are applicable to our determination of whether the criteria for reopening have been met. [FN2]. Appellant acknowledged that the arbitrator denied the continuance.