0520120642
03-18-2013
David Colon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
David Colon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Request No. 0520120642
Appeal No. 0120122047
Agency No. 4B006002012
DENIAL
Complainant timely requested reconsideration of the decision in David Colon v. U.S. Postal Service, EEOC Appeal No. 0120122047 (September 12, 2012). 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).
BACKGROUND
In the underlying case, Complainant contends that the Agency improperly dismissed his EEO complaint for untimely EEO Counselor contact. Complainant alleged that the Agency failed to advise him of his appeal rights regarding the non-selection. Further, Complainant alleged that even after he wrote the Postmaster General, he was still not given guidance by the Agency on how to pursue the matter. In addition, Complainant states he was not available because he was called to active duty.
The appellate decision noted that the Agency failed to notify Complainant of his rights despite his letter to the Postmaster General, and that Complainant was not available to pursue the matter from December 2008 through April 2010 due to active duty. However, the appellate decision affirmed the Agency's dismissal because Complainant failed to indicate what he did following his return from active duty, when he waited an additional 15 months before contacting an EEO Counselor.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant attempts to indicate what he was doing upon his return from active duty. Complainant states that following his return from active military duty in August 2010 he retired from the National Guard, returned to Puerto Rico and commenced taking criminal Justice classes. In October 2011 Complainant received by mall a copy of the settlement notice of resolution. Complainant contacted the Agency and was informed that only applicants for employment between 2004 to 2006 were entitled to the settlement coverage, even though his situation is similar. Subsequently, he was advised by the EEOC's Atlanta District Office to contact the Agency's EEO Office. After Complainant received the belated letter on the settlement he learned his appeal rights and pursued his case.
ANALYSIS AND FINDINGS
Complainant is reminded 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 (EEO MD-110), Ch. 9 � VII.A. (Nov. 9, 1999). The Commission has consistently held that arguments raised for the first time on request for reconsideration cannot be considered at this stage of the proceedings. Choates v. Federal Deposit Insurance Corporation, EEOC Request No. 05970012 (May 21, 1998); Calloway v. Dep't of the Army, EEOC Request No. 05930911 (Mar. 17, 1994); Stiles v. Dep't of Transportation - FAA, EEOC Request No. 05940525 n.4 (Feb. 9, 1994); Valverde v. Department of Agriculture, EEOC Request No. 05900961 (Oct. 19, 1990). Therefore the Commission will not consider these arguments here. The Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
CONCLUSION
After reviewing 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. 0120122047 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
___3/18/13_______________
Date
2
0520120642
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120642