Moorer I. Moorer, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 12, 2005
05a50704 (E.E.O.C. Sep. 12, 2005)

05a50704

09-12-2005

Moorer I. Moorer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Moorer I. Moorer v. United States Postal Service

05A50704

09-12-05

.

Moorer I. Moorer,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A50704

Appeal No. 01A51718

Agency No. 4G-780-0277-04

DECISION ON REQUEST TO RECONSIDER

On March 29, Moorer I. Moorer (complainant) timely requested

reconsideration of the decision in Moorer I. Moorer v. John E. Potter,

Postmaster General, United States Postal Service, EEOC Appeal No. 01A51718

(March 23, 2005). 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 affirmed the agency's decision to dismiss

complainant's complaint for untimely contact with an EEO counselor.<1>

In his request, complainant argued that the agency failed to treat his

complaint as a mixed case complaint and that the agency's and OFO's

decisions are moot. We note that complainant's complaint was never a

viable complaint, since he contacted an EEO counselor beyond the 45-day

period from the discriminatory event. We find that the previous decision

was correct.

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.

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. 01A51718 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission 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

______09-12-05____________

Date

1On June 22, 2004, complainant was discharged from the agency for

violation of a Last Chance Agreement in which he promised to be regular

in attendance. After his termination on June 22, 2004, complainant did

not contact an EEO counselor until September 9, 2004.