05A30618
05-29-2003
Steve F. Merrill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Steve F. Merrill v. United States Postal Service
05A30618
May 29, 2003
.
Steve F. Merrill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 05A30618
Appeal No. 01A13668
Agency No. 4G-760-0279-98
Hearing No. 310-99-5364x
DENIAL OF REQUEST FOR RECONSIDERATION
Steve F. Merrill (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Steve F. Merrill v. United States Postal Service, EEOC
Appeal No. 01A13668 (March 6, 2003). EEOC Regulations provide that the
Commission may, in its discretion, 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).
In his underlying complaint, complainant alleged that he was discriminated
against on the bases of his sex and reprisal for prior EEO activity
under Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., when on or about May 29, 1998,
he was issued a notice of removal which was subsequently reduced to
a letter of warning on June 30, 1998. This resulted from management
officials observing complainant working at a food establishment that he
owned, while simultaneously taking sick leave from the agency on May 12,
1998, in violation of Part 513.312 of the Employee and Labor Relations
Manual, which prohibits employees from taking sick leave to engage in
outside work. An EEOC Administrative Judge (AJ) was scheduled to hold
a hearing. Prior to the hearing, the AJ issued a decision pursuant to
29 C.F.R. � 1614.109(g), finding no discrimination. The AJ concluded
that no genuine issues of material fact or credibility were in dispute
nor had complainant proffered sufficient evidence to establish a prima
facie case of sex or reprisal discrimination. On appeal, the Commission
affirmed the agency's final order, noting that complainant conceded that
he engaged in outside work while taking sick leave.
In his request for reconsideration, complainant contends that the AJ
erred in finding that there were no genuine issues of material fact.
Complainant further alleges for the first time, that he had merely
stopped by his food establishment, in order to wait for his new
eyeglasses. However, we note that the request for reconsideration
is not a second appeal and the Commission will only reconsider prior
decisions that meet the strict requirements of 29 C.F.R. � 1614.405(b).
Therefore, after a review of 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. 01A13668 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this 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
May 29, 2003
__________________
Date