05990125
05-10-1999
Martin Deranian, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Martin Deranian v. United States Postal Service
05990125
May 10, 1999
Martin Deranian, )
Appellant, )
)
v. ) Request No. 05990125
) Appeal No. 01980897
William J. Henderson, ) Agency No. 1-F-937-1046-96
Postmaster General, ) Hearing No. 370-97-X2515
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On Monday, October 26, 1998, Martin Deranian (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Deranian v. United States Postal Service,
EEOC Appeal No. 01980897 (September 21, 1998). EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant filed an EEO complaint alleging discrimination on the bases of
race (Caucasian), color (white), age (53 years), sex (male), religion
(Christian), and national origin (American-Armenian) when his starting
time was changed from 6:00 a.m. to 4:00 a.m. The record indicates that
the agency noticed a need to have employees with knowledge of a certain
scheme start earlier. Only two available employees had the requisite
scheme knowledge - appellant and one other employee. As a result, both
had their starting times changed to 4:00 a.m.
The agency investigated that complaint and thereafter appellant requested
a hearing. The administrative judge (AJ) issued a recommended decision
without a hearing noting that appellant did not respond to the agency's
motion for findings and conclusions without a hearing. In addition, the
AJ noted that during the investigation, appellant did not respond to the
agency's request for an affidavit. In any event, the AJ found that people
appellant cited as comparatives were not similarly situated - either
they were not qualified or they were not available because of previous
assignment to other duties, another zone, or another department. Even
looking at the evidence in the light most favorable to appellant, the
AJ found that there was no discrimination.
The agency adopted the AJ's findings and appellant filed an appeal. The
previous decision affirmed the agency's final decision without substantive
comment.
In his request for reconsideration, appellant complains that he did not
have a hearing and that his witnesses were not interviewed. Appellant does
not explain why he did not or could not respond to the agency's motion
for findings of fact and conclusions without a hearing. In addition,
the Commission notes that appellant did not provide any arguments when
he filed his appeal of the agency's decision - in effect, he is making
those arguments for the first time in his request. As such, the Commission
finds they do not meet the criteria for reconsideration. The Commission
also finds the AJ's decision, as adopted by the agency, properly sets out
the pertinent law and facts. The Commission finds no reason to disturb
the findings of no discrimination.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's request
does not meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01980897 remains the Commission's final
decision. There is no further right of administrative appeal from the
decision of the Commission on this request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 10, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat