0520120579
02-07-2013
Martin Ogden, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Martin Ogden,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520120579
Appeal No. 0120121744
Hearing No. 541-2011-00282X
Agency No. 4G-780-0095-11
DENIAL
Complainant timely requested reconsideration of the decision in Martin Ogden v. U.S. Postal Service, EEOC Appeal No. 0120121744 (July 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).
In a formal complaint, Complainant alleged that he was subjected to harassment and a hostile work environment on the basis of age (over 40) and in reprisal for prior EEO activity when:
1. On January 3, 2011, an employee made the statement, "So you've got a problem, you don't know anything," etc;
2. On February 19, 2011, he was struck by a cart and management failed to take appropriate action to protect him; and
3. On February 22, 2011, he was grabbed and jerked by his co-worker, and management failed to take appropriate action.
Following a hearing held on January 11, 2012, an EEOC Administrative Judge (AJ) issued a decision on January 17, 2012. In that decision, the AJ found no discrimination or harassment because Complainant failed to prove that the Agency's articulated non-discriminatory reasons for the alleged actions were pretext for unlawful discrimination. In our previous decision, the Commission affirmed the AJ's finding.
In his request for reconsideration, Complainant argues that the Commission failed to consider that he has made more than 10 claims of retaliation and discrimination against Agency managers. Complainant contends that the Agency has engaged in a concerted effort to discriminate against him.
We note 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. In so finding, we note that Complainant's request contains conclusory assertions that do not prove that he was subjected to unlawful discrimination or harassment. Consequently, we find that our previous decision properly affirmed the Agency's final order finding no discrimination or harassment.
Accordingly, 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. 0120121744 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
February 7, 2013
Date
2
0520120579
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120579