Hou Hsu, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionJan 23, 2012
0520110660 (E.E.O.C. Jan. 23, 2012)

0520110660

01-23-2012

Hou Hsu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.




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

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0520110660

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520110660