05a50645
04-22-2005
Benny L. Nussbaumer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Benny L. Nussbaumer v. United States Postal Service
05A50645
04-22-05
.
Benny L. Nussbaumer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50645
Appeal No. 01A50825
Agency No. 4E-970-0075-04
DECISION ON REQUEST TO RECONSIDER
On March 5, 2005, Benny L. Nussbaumer (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Benny L. Nussbaumer v. John E. Potter, Postmaster General,
United States Postal Service, EEOC Appeal No. 01A50825 (January 31, 2005).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b).
In the previous decision, the Commission agreed with the agency's
determination that complainant's complaint was properly dismissed for
untimely contact with an EEO counselor. In his request, complainant
stated that on November 5, 2003, he was denied reinstatement based on
age discrimination, and, after he was injured on December 16, 2003,
he could not contact an EEO counselor, since he could not walk.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
As stated in the previous decision, a complainant must contact an EEO
counselor within the 45 days following the event. In complainant's
case, he was required to contact an EEO counselor on or before December
20, 2003. 29 C.F.R. � 1614.107(a)(2). He does not explain why he did
not contact an EEO counselor between November 5 and December 15, 2003.
Complainant has not provided sufficient reasons for an extension of time.
29 C.F.R. � 1614.604(c).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A50825 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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
______04-22-05____________
Date