Paul R. Harvey, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 27, 2001
05A20177 (E.E.O.C. Dec. 27, 2001)

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