0520140397
01-29-2015
Request No. 0520140397
Grievant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520140397
Appeal No. 0220120003
Agency No. 4G-720-0040-10
DENIAL
Grievant timely requested reconsideration of the decision in EEOC Appeal No. 0220120003 (April 24, 2014). 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(c).
The previous decision dismissed Grievant's appeal from the final decision of an arbitrator, which found that the Agency's decision to remove Grievant should not be reversed. The previous decision found that the Commission lacked jurisdiction to review the decision of the arbitrator because it was not an appealable matter under 29 C.F.R. � 1614.401(d). The decision also found that Grievant had filed an EEO complaint on the same matter alleging discrimination, which was addressed by the Commission in another decision. See Mitchell v. U.S. Postal Service, EEOC Appeal No. 0120112416 (January 19, 2012).
Grievant filed a request for reconsideration, in which he summarily argued that the decisions of the arbitrator and the Administrative Judge were incorrect and that the matter should be sent back to each for new decisions based on new information that Grievant would introduce. The Agency submitted a statement in opposition to the request for reconsideration in which it argued that the request for reconsideration should be dismissed based on the civil action filed by Grievant.
We find that Grievant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Grievant's argument in support of his request for reconsideration did not show that the previous decision was clearly erroneous with regard to a mistake of fact or law in its conclusion that the Commission did not have jurisdiction over the arbitrator's decision. Additionally, while he seemed to allude to the decision of an EEOC Administrative Judge being incorrect, presumably the decision at issue in EEOC Appeal No. 0120112416, we note that Grievant did not file any timely request for reconsideration from that appellate decision.
We remind Grievant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Grievant has not done so here.
We also note that the Agency requested to dismiss this request for reconsideration based on Grievant's filing of a civil action (in April 2012, in accordance with his rights as noted in EEOC Appeal No. 0120112416) in the U.S. District Court for the Eastern District of Arkansas on the same matter. Although we have already determined that Grievant's request for reconsideration should be denied on another basis, the Agency is informed that its proffer of the civil action filing would have been an inadequate basis on which to dismiss this request for reconsideration. As the Commission found when the Agency requested the dismissal of Grievant's appeal based on the filing of an earlier civil action in EEOC Appeal No. 0120112416, Grievant's civil action was dismissed without prejudice prior to the issuance of this decision.
The record as submitted by the Agency contains a Motion to Set Aside Complaint, filed on August 11, 2012, in which Grievant requested that the District Court dismiss Civil No. 3:12-cv-00106-KGB without prejudice. The record also contains a copy of an Order of Dismissal, dated November 9, 2012, dismissing Civil No. 3:12-cv-00106-KGB without prejudice.
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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0220120003 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
GRIEVANT'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 29, 2015
Date
2
0520140397
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140397