05a60924
08-18-2006
James B. Nickelberry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James B. Nickelberry v. United States Postal Service
05A60924
8-18-06
.
James B. Nickelberry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A60924
Appeal No. 01A61301
Agency No. 66-000-0031-03
Hearing No. 340-2004-00430x
DECISION ON REQUEST TO RECONSIDER
On July 31, 2006, James B. Nickelberry (complainant) timely requested
reconsideration of the decision in James B. Nickelberry v. John E. Potter,
Postmaster General, United States Postal Service, EEOC Appeal No. 01A61301
(June 29, 2006). EEOC regulations provide that the Commission may, in
its discretion, grant a request to reconsider any previous Commission
decision where the party demonstrates that: (1) the appellate 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).
The previous decision found that the agency did not discriminate against
complainant based on race (Black), disability (adjustment disorder), age
(DOB 9/13/1949), or in reprisal for prior EEO activity when (a) he was
�disrespected' and humiliated; and (b) his workers' compensation forms
were delayed.<1> In his request, complainant reasserted his contention
that an agency manager made racial slurs.
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. Complainant's repetition of his
claims is insufficient to assert a mistake in the previous decision.
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. 01A61301 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
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
____8-18-06______________
Date
1The Commission has held that claims regarding the processing of OWCP
forms constitute a collateral attack on that process and, as such, fail
to state a claim in the EEO process. Schneider v. USPS, EEOC Request
No. 05A01065 (August 15, 2002).