05980455x
11-04-1999
John P. McHale, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John P. McHale, )
Appellant, )
) Request No. 05980455
v. ) Appeal No. 01973952
) Agency No. 4-H-327-0071-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On April 4, 1998, John P. McHale (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in McHale v. United States Postal Service, EEOC
Appeal No. 01973952 (February 5, 1998). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
or the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant filed an EEO complaint in which appellant alleged that the
agency discriminated against him on the bases of sex (male) and reprisal
(no prior EEO activity) when on or about November 4, 1996, he was
�excessed� from the window section. In the Final Agency Decision (FAD),
the agency dismissed the basis of reprisal for prior EEO activity when
the agency's records showed that appellant had no prior EEO activity.
Therefore, it dismissed the basis of reprisal for failure to state a
claim pursuant to 29 C.F.R. �1614.107(a) and accepted for investigation
appellant's allegation of discrimination on the basis of sex (male).
The previous decision summarily affirmed the agency's decision to dismiss
a portion of his complaint.
In his Request to Reconsider (RTR), appellant argued that the Commission
erroneously misinterpreted the facts of his case in its affirmation of
the agency's FAD. He stated that the merits of his case would show that
he was discriminated against on the basis of sex.
After a careful review of the record, the Commission finds that appellant
fails to meet any of criteria of 29 C.F.R. �1614.407(c). Nowhere in
the record are there indications that appellant engaged in any EEO
counseling session, filed any formal EEO complaint, or participated in any
investigation, hearing, or other EEO activity, either on his own behalf
or as a representative or witness for another complainant, other than the
matter now before us. Since appellant has not identified any EEO activity
in which he engaged prior to this complaint, his claim of discrimination
on the basis of reprisal does not state a claim. The previous decision
correctly affirmed the agency's dismissal of appellant's allegation on
the basis of reprisal for failure to state a claim.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and
it is the decision of the Commission to deny appellant's request.
The decision in Appeal No. 01973952 remains the Commission's final
decision in this matter. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov. 4, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat