0520070043
11-13-2006
Michael D. Marion, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Michael D. Marion,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Request No. 0520070043
Appeal No. 01A54660
Agency No. 4G-780-0145-04
DENIAL
Complainant timely requested reconsideration of the decision in Michael
D. Marion v. United States Postal Service, EEOC Appeal No. 01A54660
(September 13, 2006). 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)1.
Complainant alleged discrimination based on race (Black) and sex when
the agency changed his work assignment in February 2004, resulting in
fewer hours of work and a change in his weekly schedule and his days off.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ conducted a hearing by telephone
on April 21, 2005, and issued a bench decision, made final on May 11,
2005, finding no discrimination. The AJ found that complainant did not
demonstrate that his race or sex was a factor in the agency's action
changing his duties and schedule. The agency's final decision then
implemented the AJ's finding of no discrimination.
Pursuant to complainant's appeal, the Commission found that the AJ's
action in holding a telephonic hearing was harmless error. Further, the
Commission found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, through the testimony of the Postmaster (PM) at
complainant's facility, who explained that some of the duties performed
by complainant allowed access to confidential employee files and that
it was inappropriate for complainant to have such access and perform
those duties; in particular, the PM noted that completing work hours and
timekeeping duties, volume reports, and attendance records were more
properly done by management-level staff. As of February 2004, these
duties were removed from complainant's work assignment, which led to a
reduction in hours and changes in his schedule, and thus we found that the
agency met its burden of production in articulating legitimate reasons
for its actions. The Commission then found that complainant failed to
proffer evidence which demonstrated that the agency's articulated reasons
for its actions were more likely than not a pretext for discrimination.
In his request for reconsideration, complainant stated that he was
challenging a "wrong decision and requesting reconsideration. I will be
providing a supporting brief." However, we note that the Commission's
regulations, and our prior decision regarding complainant's case, clearly
state that "requests to reconsider, with supporting statement or brief,
must be filed with the Office of Federal Operations (OFO) within thirty
(30) calendar days of receipt of this decision or within twenty (20)
days of receipt of another party's timely request for reconsideration."
29 C.F.R. � 1614.405.
As such, complainant was required to file any statement or brief
in support of his request for reconsideration with the request.
Complainant failed to submit a statement with his request, and thus
his sole contention in support of his request is that the Commission's
decision was "wrong." However, a review of the Commission's decision
affirming the finding of no discrimination shows that it is supported by
substantial evidence. Thus, 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 decision in EEOC Appeal No. 01A54660
remains the Commission's final 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 (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__11-13-06________________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced request number.
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2
0520070043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070043