0520100054
12-03-2009
David A. Elias, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
David A. Elias,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Request No. 0520100054
Appeal No. 0120081660
Agency No. 4J-493-0056-07
DENIAL
Complainant timely requested reconsideration of the decision in David
A. Elias v. U.S. Postal Service, EEOC Appeal No. 0120081660 (September
16, 2009). 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 underlying complaint, complainant alleged that he was discriminated
against on the bases of national origin (Lebanon) and age (forty-four
years old) when, on or about May 20, 2007, the agency failed to call him
for an interview. In EEOC Appeal No. 0120081660, the Commission concluded
that complainant did not show, by a preponderance of the evidence, that
the agency's articulated reason for not interviewing him was a pretext
for discrimination on the bases alleged. In her affidavit, the selecting
official averred that the reason complainant was not interviewed for
the position in question was because he failed to contact the postmaster
for an appointment for an interview, as directed in the Call-in Notice.
The Call-in Notice specified that the failure to respond would result
in the removal of complainant's name from the register for employment
consideration.1
In his request for reconsideration, complainant reiterates arguments
previously made, emphasizing that he has been subjected to discrimination
on the basis of his political affiliation. He also provides
additional background information, noting "much of this is new." In his
statement, complainant describes what he deems to be prior incidents of
discrimination to which he was subjected when he was previously employed
by the agency.
Initially, we note that the Commission does not have jurisdiction
over discrimination based on political affiliation. As to the
"new" information which complainant has provided in his request for
reconsideration, we remind complainant that a "request for reconsideration
is not a second appeal to the Commission." Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999), at 9-17.
This Commission carefully considered all of the record evidence at the
time it rendered the previous decision, and complainant has offered
no persuasive reason why the decision should be reconsidered now.
The previous decision correctly found that although the Call-in
Notice was not a model of clarity in that it contained ambiguous
instructions for arranging an appointment for an interview, there was
no persuasive evidence that the agency's articulated reason for not
interviewing complainant was a pretext for discrimination. Therefore,
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. 0120081660 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 (P0408)
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 (Z1008)
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
______12/03/09____________
Date
1 Complainant argued that the agency's articulated reason was not
legitimate because the Call-in Notice only required that he complete
and return the enclosed paperwork by a certain date. The notice stated
that complainant would be contacted for an interview, which indicated
to complainant that it was not required to contact the postmaster for
an interview. However, in another section, the notice indicated that
complainant should contact the postmaster for an interview.
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0520100054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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