0520110660
01-23-2012
Hou Hsu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520110660
Appeal No. 0120111352
Agency No. 4F-940-0016-11
DENIAL
Complainant timely requested reconsideration of the decision in Hou Hsu
v. U.S. Postal Service, EEOC Appeal No. 0120111352 (June 28, 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 Agency decision dismissing
all eight claims of Complainant’s complaint as either stating the
same claim as was already pending before the Agency; failure to state a
claim; or for lodging a collateral attack on proceedings of the Office of
Workers’ Compensation Programs (OWCP). Hsu, EEOC Appeal No. 0120111352.
In his request to reopen, Complainant argues, inter alia, that his claim
that the Agency delayed his first 45 days of workers’ compensation
pay (continuation of pay, or COP) is not a collateral attack on the
proceedings of OWCP, but rather pertains to the Agency’s processing of
his workers’ compensation claim. We note, however, that a review of the
record reveals that Complainant’s claim was for an occupational disease
rather than a traumatic injury; under OWCP regulations, continuation
of pay following a claim for workers’ compensation benefits is only
available for a traumatic injury claim. See 20 C.F.R. § 10.205.
Complainant’s EEO claim therefore does constitute a collateral attack
on the proceedings of OWCP, which determines eligibility for COP.
Regarding the balance of Complainant’s request, we are not persuaded
that Complainant has identified clear error of material fact or law
in the previous decision. We note that a request for reconsideration
is not a second form of appeal. E.g., Lopez v. Dep’t of Agriculture,
EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive
for 29 Part 1614 (EEO MD-110), Chap. 9, §VII.A. (Nov. 9, 1999).
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. 0120111352 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
January 23, 2012
Date
2
0520110660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110660