0520110265
03-31-2011
Brent L. Mason, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Brent L. Mason,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Request No. 0520110265
Appeal No. 0120102399
Agency No. 4B-105-0004-10
DENIAL
Complainant requested reconsideration of the decision in Brent L. Mason
v. U.S. Postal Serv., EEOC Appeal No. 0120102399 (Sept. 13, 2010).
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).
In the Commission’s previous decision, the Commission affirmed the
Agency’s April 8, 2010 final decision dismissing Complainant’s
complaint. In his complaint, Complainant alleged that the Agency
subjected to him discrimination on the basis of race (African American)
when:
1. On May 21, 2009, Complainant was issued an Indefinite Suspension/Crime
Situation; and
2. On July 6, 2009, Complainant was issued a Notice of Removal for
Unacceptable Conduct, effective August 5, 2009.
The Commission found that the alleged discriminatory events occurred
on May 21, 2009, and August 5, 2009; but Complainant did not initiate
contact with an EEO Counselor until October 30, 2009, which was beyond
the 45-day limitation period. Complainant presented no persuasive
evidence or arguments warranting an extension of the time limit for
initiating EEO Counselor contact. As a result, the Commission affirmed
the Agency’s dismissal. In the instant request, Complainant submits
no contentions or arguments in support and requests that the Commission
reconsider its prior decision.
Initially, the Commission notes that a party must file a request to
reconsider a previous decision within thirty calendar days after the party
receives the previous decision. 29 C.F.R. § 1614.405(b). A document
is timely if it is received or postmarked before the expiration of the
applicable filing period or, in the absence of a legible postmark, if it
is received by mail within five days of the expiration of the applicable
filing period. 29 C.F.R. § 1614.604(b).
The Commission’s previous decision included a Certificate of Mailing
indicating that, for purposes of timeliness, the Commission will presume
that the decision was received within five calendar days of the date
on which it was mailed, September 13, 2010. Therefore, Complainant is
presumed to have received the previous decision no later than September
18, 2010. Thirty days from that date is October 18, 2010. As evidenced
by the postmark date, Complainant mailed the instant request on January 6,
2011, which was beyond the 30-day time limit set by regulation. In his
request, Complainant contended that he did not receive the previous
decision. The record indicates that Complainant filed the instant request
from a different address than the one he provided in his previous appeal.
There is no indication that Complainant informed the Commission of any
change of address. Nonetheless, under the specific circumstances in the
instant case, the Commission shall exercise its discretion and will deem
Complainant’s request as being filed in a timely manner.
However, the Commission reminds Complainant that a “request for
reconsideration is not a second appeal to the Commission.” Equal
Employment Opportunity Commission Management Directive for 29 C.F.R. Part
1614, at 9-17 (Nov. 9, 1999); See Lopez v. Dep’t of the Air Force,
EEOC Request No. 05890749 (Sept. 28, 1989); Regensberg v. U.S. Postal
Serv., EEOC Request No. 05900850 (Sept. 7, 1990). Complainant has
not provided any evidence that the Commission’s previous decision was
clearly erroneous, nor has he shown that the previous decision would have
a substantial impact on the Agency’s policies. 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. 0120102399 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission
on this request.
COMPLAINANT’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
March 31, 2011
Date
2
0520110265
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110265