05A20227
02-22-2002
Michael T. Derby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael T. Derby v. United States Postal Service
05A20227
February 22, 2002
.
Michael T. Derby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20227
Appeal No. 01993835
Agency No. 4H-390-1151-96
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Michael
T. Derby v. United States Postal Service, EEOC Appeal No. 01993835
(November 19, 2001). 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 29 C.F.R. � 1614.405(b).
In his request for reconsideration, complainant argued that the previous
decision incorrectly analyzed his claim that he had been terminated on
the bases of his race (white) and sex (male), when he had specified that
it should be analyzed on the bases of race and/or sex. He contended
that by using the conjunctive �and� instead of the disjunctive �or� the
Commission made a clearly erroneous interpretation of material fact.
We find complainant's arguments that this was error to be unpersuasive,
and note that the analysis of complainant's evidence of pretext looked at
comparison employees who were either of complainant's race but not sex,
or of his same sex but not race. Complainant's claim was thoroughly
analyzed based on the record before us, and all of his arguments on
appeal were considered.
Complainant also argued that the Commission failed to properly investigate
his complaint. We note that under the regulations governing the federal
sector complaint process, found at 29 C.F.R. Part 1614, the investigation
of the complaint is the responsibility of the agency against which
it was filed. 29 C.F.R. � 1614.108(a). If a complainant wishes to
further develop the factual record for a decision, a hearing before a
Commission Administrative Judge (AJ) is the opportunity provided during
which time the record can be supplemented and witnesses examined.
See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
7-1 (November 9, 1999). The previous case noted that complainant had
requested a hearing before an AJ, but subsequently withdrew that request.
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. 01993835 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.
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
February 22, 2002
__________________
Date