05a01139
02-27-2001
Albert A. Straka, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Albert A. Straka v. United States Postal Service
05A01139
02-27-01
.
Albert A. Straka,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A01139
Appeal No. 01A03514
Agency No. 4A-070-0156-97
DECISION ON REQUEST TO RECONSIDER
On August 12, 2000, Albert A. Straka (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Albert A. Straka v. William J. Henderson, Postmaster General,
United States Postal Service, EEOC Appeal No. 01A03514 (July 19, 2000).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous 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).<1> For the reasons set forth below, the complainant's
request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration.
Complainant received his Notice of Final Interview (NOFI) on July 28,
1997, and filed his formal complaint on December 8, 1999, claiming that
the agency discriminated against him on the basis of age (DOB 11-11-24)
when he was removed for failure to follow instructions, i.e., using his
personal car for mail delivery in defiance of instructions and postal
regulations. The previous decision found that his formal complaint was
filed beyond the 15-day time period and that he presented no persuasive
arguments or evidence to warrant an extension of the time period.
Complainant contacted an EEO counselor to challenge his removal, which
was effective July 18, 1997. Although he claimed to have filed a timely
complaint, the agency had no record of receipt of his complaint, nor
did complainant show that the agency had received it. Further, we note
that he took no action for two-and-one-half years. Also, the records
shows that complainant engaged in prior EEO activity and was aware of
the agency's process and time limitations for filing a formal complaint.
Complainant has filed a request that the Commission reconsider the
previous decision. He argued that because the agency "controls
submissions, time limits, and investigates itself," it carried the
burden in response to complainant's defense. In order to merit the
reconsideration of a prior Commission 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 a form of 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's regulations state that a complainant must file his formal
complaint within 15 days of receipt of the NOFI. 29 C.F.R. � 1614.106(b).
While these time limits are subject to waiver, estoppel and equitable
tolling, complainant has not offered sufficient reason to overcome his
tardy filing. 29 C.F.R. � 1614.604(c). For these reasons, we agree with
the previous decision's determination that complainant's formal complaint
was untimely and properly dismissed. 29 C.F.R. � 1614.107(a)(b).
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request fails to meet any of the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the
complainant's request. The decision of the Commission in EEOC Appeal
No. 01A03514 (July 19, 2000) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
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
___02-27-01_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.