0520070824
09-19-2007
Andre I. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andre I. Russell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520070824
Appeal No. 0120072102
Agency No. 4H300029005
DENIAL
Complainant timely requested reconsideration of the decision in Andre
I. Russell v. United States Postal Service, EEOC Appeal No. 0120072102
(July 10, 2007). 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(b).
The Commission's previous decision agreed with the agency and
the Administrative Judge (AJ) that a decision without a hearing was
appropriate and that the agency did not discriminate against complainant.
In his complaint, complainant claimed discrimination based on race
(black) and sex (male) when the agency delayed his conversion to Rural
Carrier Associate (RCA) until May 2005. The agency explained that he
could not be converted until his name was listed on a Register, and his
name first appeared on the March 28, 2005, list. Complainant did not
demonstrate pretext, i.e., that the agency's reason was not true and
based on discriminatory considerations of race and sex.
In his request, complainant referred us to his brief on appeal. 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 an
opportunity for 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.1
After reconsidering 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. 0120072102 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
NOTICE OF RIGHTS - REQUEST TO RECONSIDER
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
____9/19/07______________
Date
1 The Commission's regulations require that complainant demonstrate
that the previous decision was flawed or would substantially impact the
agency's operation. 29 C.F.R. � 1614.405(b). Here, it was complainant's
burden to present such argument or evidence to meet one of the criteria;
mere reference to his appeal brief does not meet his obligation.
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0520070824
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070824