05A20177
12-27-2001
Paul R. Harvey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Paul R. Harvey v. United States Postal Service
05A20177
12/27/01
.
Paul R. Harvey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 05A20177
Appeal No. 01994560
Agency No. 4H-330-1113-96
Hearing No. 150-97-8635X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Paul
R. Harvey v. United States Postal Service, EEOC Appeal No. 01994560
(August 9, 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).
Complainant filed a formal complaint alleging discrimination on the bases
of race (Caucasian), color (white), sex (male), age (DOB: 5/29/40), and
disability (depression), when, on September 30, 1995, his grade and pay
were reduced to EAS-16. Following an investigation into the complaint,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). After a hearing on the complaint, the AJ issued a recommended
decision finding that complainant had not been discriminated against.
The agency's final decision adopted the AJ's recommended decision.
The prior decision affirmed the agency's finding of no discrimination.
Assuming complainant was an individual with a disability, the prior
decision found the agency accommodated his request for reassignment
to a less stressful position when the agency detailed complainant to
a Facilitator position. Furthermore, the agency approved complainant's
request for a saved grade until he was eligible for retirement. The prior
decision found the agency permitted this arrangement even though the
District Manager had not detailed any other individual over the EAS-16
level to a Facilitator position. The prior decision found, however,
that once complainant reached retirement age, he decided he did not wish
to retire and he returned to an EAS-16 supervisor position, as had been
agreed. Complainant wanted to remain at the EAS-19 grade, even though he
was not able to perform at that level. The prior decision found that the
agency satisfied its obligation to accommodate complainant's disability.
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. On reconsideration,
complainant argues that management was aware of his disability because
of his use of the Employee Assistance Program. Complainant, however,
failed to establish how the prior decision involved a clearly erroneous
interpretation of material law or fact. The decision assumed, for the
sake of argument, that complainant was an individual with a disability.
The decision in EEOC Appeal No. 01994560 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
12/27/01
Date