0520100575
11-12-2010
Kevin M. McGhee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Kevin M. McGhee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Request No. 0520100575
Appeal No. 0120101133
Agency No. 4G-770-0065-09
Hearing No. 460-2009-00130X
DENIAL
Complainant timely requested reconsideration of the decision in Kevin M. McGhee v. U.S. Postal Service, EEOC Appeal No. 0120101133 (June 17, 2010). 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).
The record reveals that on his appeal form, Complainant stated that he received the Agency's final action on October 27, 2009. A review of the final action reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final action to file his appeal with the Commission. In order to be considered timely, Complainant had to file his appeal no later than Friday, November 27, 2009. 1 Complainant did not offer justification for an extension of the applicable time limit for filing his appeal on January 10, 2010. In the prior decision, the Commission dismissed Complainant's appeal on the grounds that it was not timely filed.
Complainant requested reconsideration of the Agency's October 27, 2009 final action. Specifically, Complainant argued that the he received the Commission's June 17, 2010 dismissal of his appeal on August 7, 2010 "due to the wrong address I would like to reopen my case. . . [a named Manager of Human Recourse] had said I never told them that had health problem that not so I'm the District Manager of Houston sent me a letter."
Upon review of the record, we find although Complainant did not receive our June 17, 2010 dismissal of his January 10, 2010 untimely appeal until August 7, 2010, it does not change the outcome of the instant complaint. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Nov. 9, 1991), Chapter 9.
After reconsidering 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. 0120101133 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
November 12, 2010
__________________
Date
1 The thirtieth day following Complainant's receipt of the Agency's final action fell on Thursday, November 26, 2009, a Federal holiday, requiring an extension of the time period for filing an appeal to the next business day, Friday, November 27, 2009. 29 C.F.R. � 1614.604(d).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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