05980414
06-22-2000
Don Kaiser, Complainant, William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
Don Kaiser v. United States Postal Service
05980414
June 22, 2000
Don Kaiser, )
Complainant, ) Request No. 05980414
) Appeal No. 01956922
) Agency No. 5D113190
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region) )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Don
Kaiser v. USPS, EEOC Appeal No. 01956922 (January 5, 1998).<1>
EEOC Regulations provide that the Commission may, in its discretion,
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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
The only issue presented by the instant request is whether complainant
timely requested a hearing pursuant to EEOC Regulations at 64
Fed. Reg. 37644, 37656 (to be codified at 29 C.F.R. �1614.108(g)).
We note that a regulatory time limit may run where due diligence is
used to deliver appropriate rights to a complainant, but the effort
is unsuccessful. Woehr v. United States Postal Service, EEOC Request
No. 05960657 (July 3, 1997). In the Woehr case the Commission found that
it had acted with due diligence to provide a complainant with a copy of
an appeal decision by mailing it to the complainant twice, which resulted
in six attempts to deliver the decision over a two-month time span.
We note that the agency sent complainant the investigative file and
appeal rights by regular and certified mail. The certified mail package
was returned to the agency marked "unclaimed." The package was resent
by carrier certified delivery. The carrier who delivered the package,
verified the address and the delivery of the package. On appeal, the
agency submitted the carrier certification indicating that he delivered
the investigative file and hearing rights to complainant's address
on December 16, 1994 at 2:40 P.M. We take note that the complainant
has appealed three cases to the Commission all denying his receipt of
appeal rights.<2>
After a review of the complainant's request for reconsideration, 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. 01956922 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for 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 22, 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
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.
2See Kaiser v. USPS, EEOC Appeal No. 01883100 (November 9, 1996),
and Kaiser v. USPS, EEOC Appeal No. 01971995 (pending).