0520090316
05-08-2009
John F. Reider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John F. Reider,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090316
Appeal No. 0120070679
Hearing No. 340-2005-00603X
Agency No. 4F-920-0118-02
DENIAL
Complainant timely requested reconsideration of the decision in John
F. Reider v. United States Postal Service, EEOC Appeal No. 0120070679
(February 24, 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 appellate decision, the record revealed that complainant had
entered into a settlement agreement with the agency. Approximately two
years later, complainant filed a formal complaint in which he alleged that
he had been harassed and retaliated against on the bases of disability
(back, right foot), age (42), and in reprisal for prior protected
activity when he was subjected to nine various incidents.1 An EEOC
Administrative Judge (AJ) issued a decision without a hearing. The AJ
found that claim (5) failed to state a claim and the remaining claims
were dismissed as the AJ found that complainant's true complaint was that
the agency had breached its obligations under the settlement agreement.
The agency issued a final order fully implementing the AJ's decision.
The Commission found that the AJ had properly dismissed claim (5) for
failure to state a claim. The Commission also found that claims (2),
(6), and (7) failed to state actionable claims under our regulations.
With respect to claims (1), (3), and (4), the Commission found that the
AJ had erred in that this claims were part of a harassment claim and not
a complaint of settlement breach. The Commission remanded these claims
to the agency for further processing.
In his request for reconsideration, complainant contends that all of
his claims should be considered as part of his harassment complaint.
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 Commission finds that complainant failed to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. Upon review,
we agree that claims (2), (5), (6) and (7) were properly dismissed for
failure to state claim and should not be part of complainant's harassment
claim. Accordingly, the decision in EEOC Appeal No. 0120070679 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
With regard to the matters raised in claims (1), (3), and (4), the
agency shall submit to the Hearings Unit of the Los Angeles District
Office a copy of the complaint file within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the remanded harassment
claim in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20013. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
05/08/09
__________________
Date
1 (1) on an unspecified date, he was isolated and branded as a
"problem employee;" (2) on unspecified dates, he was denied union
representation; (3) on March 8, 2002, he was subjected to an improper
investigative interview; (4) on or about March 23, 2002, his removal
from his previously assigned duties contributed to his back injury;
(5) on October 10, 2002, USPS Labor Relations provided unauthorized
documents to the union in retaliatory and disciplinary union proceedings
against him; (6) on or about November 7, 2002, management unilaterally
withdrew from an unspecified mediation; (7) on an unspecified date, he
agreed to withdraw a pending EEO pre-complaint after management agreed
to rescind two Letters of Warning (LOWs), and the LOWs were accompanied
by other unspecified retaliatory actions; (8) on January 16, 2002, he
was set up by management as a pretext to remove him from checking in/out
carriers; and (9) on February 28, 2002, and March 2, 2002, he was set
up by management as a pretext to remove him from delivering Express Mail.
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0520090316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013