0120112333
03-16-2012
DWAYNE A. BOWMAN, COMPLAINANT, v. PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (GREAT LAKES AREA), AGENCY.
DWAYNE A. BOWMAN, COMPLAINANT,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (GREAT LAKES AREA), AGENCY.
Request No. 0520120091
Appeal No. 0120112333
Hearing No. 471-2009-00093X
Agency No. 1J-494-0003-09
March 16, 2012
DENIAL
Complainant timely requested reconsideration of the decision in Dwayne A. Bowman v. U.S. Postal Service, EEOC Appeal No. 0120112333 (October 3, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our previous decision, we affirmed the final determination of the Agency with regard to whether it had complied with the award of relief ordered by the EEOC Administrative Judge and implemented by the Agency in its October 27, 2010, final order. We found that the Agency was in compliance with its final order. More specifically, we found, inter alia, that the Agency had properly determined that Complainant was not owed any back pay in connection with the finding that the Agency had discriminated against him with regard to a detail assignment. The Agency determined that Complainant had earned more income performing the duties of his regular position than he would have earned performing the duties of the detail, including overtime, penalty time, and night hours, and therefore was not owed back pay.
On reconsideration, Complainant for the first time argues that the Agency used an improper basis for its calculation of back pay. Complainant asserts that the Agency should have calculated the earnings for the detail position based on the amount of overtime, penalty time, and night hours that he worked in his regular position rather than the amount of overtime, penalty time, and night hours actually worked by the selectee in the detail position. Complainant further asserts that the award of back pay should take into account that he might have been detailed to the subject position on a separate occasion, had discrimination not occurred with regard to the initial selection.
Complainant misapprehends the nature of make-whole relief, which is intended to place him in the position he would have occupied but for the discrimination. There is no evidence that Complainant would have worked overtime, penalty time, or night hours beyond those worked by the selectee. Further, there is no basis to suppose that Complainant would have been detailed to the subject position on other occasions.1
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
After reviewing 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. 0120112333 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
Footnotes
1. 1. We note that when Complainant was placed in the subject position, he requested that the three-month detail be terminated after only one week, and declined the offer of another three-month detail.