05A10856
10-02-2001
Zerubbabel Hawkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Midwest Area), Agency.
Zerubbabel Hawkins v. United States Postal Service
05A10856
October 2, 2001
.
Zerubbabel Hawkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Midwest Area),
Agency.
Request No. 05A10856
Appeal No. 01996896
Agency No. 1-I-631-0053-98
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Zerubbabel
Hawkins v. United States Postal Service, EEOC Appeal No. 01996896
(May 11, 2001). 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 the underlying complaint, complainant claimed that he was discriminated
against on the bases of race (Black), religion (not specified), and
reprisal (prior EEO activity)<1> in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
when on November 12, 1994, he was demoted to the position of Clerk, PS-5.
The agency's final agency decision (FAD) dismissed the complaint because
complainant had filed a civil action on the same matter and our prior
appellate decision affirmed this dismissal.
In his request for reconsideration, complainant contends that the
Commission's decision failed to address the critical issue of notice.
Specifically, as noted in our prior decision, complainant filed an
appeal challenging the demotion as discriminatory with the Merit System
Protection Board (MSPB). Complainant argued on appeal that the agency
was required to notify him in writing of his right to contact an EEO
counselor within forty-five (45) days of receipt of the decision issued
by the MSPB which dismissed his appeal for lack of jurisdiction.
In its opposition brief, the agency contends that complainant has failed
to provide an acceptable basis that would warrant reconsideration.
Specifically, the agency notes that complainant failed to present new
and material evidence; show that the previous decision involved an
erroneous interpretation of law or regulation or a misapplication of
established policy; or, show that the previous decision is exceptional
or of a precedential nature that may have effects beyond this case.
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. In reaching this
conclusion, we note that although complainant is correct when he asserts
that the agency failed to notify him of his rights to initiate the EEO
process once his MSPB dismissed his appeal for lack of jurisdiction,
once he filed a civil action in federal court on this same matter,
our regulations mandate that we terminate further processing of
the appeal. Accordingly, the decision in EEOC Appeal No. 01996896
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
October 2, 2001
__________________
Date
1 The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute such activity occurred.