05990595
06-07-2000
Danny M. Martin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Danny M. Martin v. United States Postal Service
05990595
June 7, 2000
Danny M. Martin, )
Complainant, )
)
v. ) Request No. 05990595
) Appeal No. 01983753
William J. Henderson, ) Agency No. 4J-493-0081-98
Postmaster General, )
United States Postal Service,)
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant timely initiated a request for the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision in
Danny M. Martin v. United States Postal Service, EEOC Appeal No. 01983753
(March 12, 1999). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved 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. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. �1614.405(b)).<1>
In this case, complainant filed a formal EEO complaint alleging
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq., when he was removed
from employment on charges of making threatening comments toward a
fellow employee. The notice of removal was issued September 3, 1997,
with an effective date of October 11, 1997. Complainant contacted an
EEO Counselor for the first time on January 5, 1998, more than 45 days
after the October 11, 1997, effective date of his removal. The agency
dismissed the subsequently filed complaint for failure to contact an
EEO Counselor in a timely fashion. The previous decision affirmed.
In his request for reconsideration, complainant argues, as he did below,
that his removal did not become final until December 4, 1997, the date
on which his Step 2 grievance was denied, and that his contact with the
EEO Counselor on January 5, 1998, therefore was timely. The agency, in
its reply, argues that complainant's request does not meet the criteria
for reconsideration, and so should be denied.
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which 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. Lopez v. Dept. of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A request for reconsideration is not merely a form
of a second appeal. Regensberg v. U.S. Postal Service, EEOC Request
No. 05900850 (September 7, 1990).
After a careful review of the record, the Commission finds that
complainant's request for reconsideration does not meet the regulatory
criteria of 29 C.F.R. �1614.405(b). The fact that complainant chose
to engage in the agency's grievance process prior to contacting an EEO
Counselor and did not receive a final grievance decision until more than
45 days after the effective date of his removal does not warrant tolling
the time for EEO Counselor contact. The Commission's regulations provide
for delaying the time in which a formal EEO complaint must be filed
pursuant to 29 C.F.R. � 1614.106, but do not provide for tolling the time
for initial contact with an EEO Counselor. See 29 C.F.R. � 1614.301(c).
Further, the Commission notes that while the Step 2 grievance decision
does refer to a mutual agreement to extend time limits, the time limits
to be extended were those under the agency's National Agreement, not the
Commission's regulations. The Commission also notes that complainant
has never argued that he was unaware of the applicable time limits, only
that they should not apply to him. Moreover, complainant's argument that
equity considerations, i.e., his lengthy unblemished employment record
with the agency, should cause the Commission to toll the applicable time
limitation is also without merit. Such argument goes to the substance
of complainant's dispute with the agency, not complainant's compliance
with the Commission's regulations.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request does not meet the criteria of 29 C.F.R. �1614.405(b), and the
request therefore is DENIED. The decision of the Commission in Appeal
No. 01983753 remains the Commission's final decision in this case.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
STATEMENT OF RIGHTS � ON RECONSIDERATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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:
June 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.