0520090125
08-07-2009
Peter L. Frankovitch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast area), Agency.
Peter L. Frankovitch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast area),
Agency.
Request No. 0520090125
Appeal No. 0120055471
Agency No. 1H-324-0038-03
DENIAL
Complainant timely requested reconsideration of the decision in Peter
L. Frankovitch v. United States Postal Service, EEOC Appeal No. 0120055471
(December 12, 2007). 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 his formal complaint, complainant alleged employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Complainant specifically alleged
that the agency discriminated against him on the basis of disability (back
and leg injury) when, from May 22 through May 27, 2003 his supervisor
tried to force him off the clock at 8:00 am because of his light duty
status and made a derogatory remark about his being a light duty employee.
In the appellate decision, EEOC Appeal No. 0120055471, the Commission
affirmed the agency's final decision finding no discrimination because
the preponderance of the evidence of record did not establish that
discrimination occurred.
In his request, complainant submits a packet of what he describes as
"untimely" documents. He describes the submission as follows:
The packet of evidence I am submitting illustrates that the W.P.B. Post
Office had access to a continuous flow of medical documents/ letters,
grievances, a union letter, and official Post Office documents proving
the Post office had no basis in forcing me to fill out requests for
light duty. I believe this was an attempt to illegally and without cause
reclassify my work status.
Brief at 2.
Complainant additionally asserts: "[t]he specific incident on which this
complaint is based was the culminating act in an eight month campaign
of harassment and discrimination."1 He also avers that the major
dispute in this case is whether he was a "light" duty, or "limited"
duty employee, and reiterates his contention that the agency officials
have submitted false testimony concerning his limitations and medical
documentation, which the Commission has accepted despite record evidence
to the contrary.
Initially, we address complainant's reiteration of arguments previously
made (e.g. that he is a limited duty employee, and not a light duty
employee, and that management lied about this). First, we remind
complainant 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 (rev. Nov. 9, 1999), at 9-17. We note additionally
that the Commission did not have the benefit of an AJ's findings after a
hearing, as complainant chose a FAD instead, and therefore, we evaluated
the facts based on the weight of the evidence presented to us, and found
that complainant did not prove, by a preponderance of the evidence,
that the agency's actions violated the Rehabilitation Act. Finally, we
note that at this stage of processing we cannot consider new evidence,
not already in the record.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question, and complainant has
offered no persuasive reason why this decision should be reconsidered now.
Therefore, 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. 0120055471 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 (P0408)
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 (Z1008)
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
______8/7/09____________
Date
1 We note that in Frankovitch v. United States Postal Service, EEOC
Appeal No. 01A40472 (March 10, 2004), the Commission found that several
additional incidents which complainant raised in his complaint (occurring
between November 2002 and May 19, 2003) had been properly dismissed by the
agency, while the incidents addressed in EEOC Appeal No. 0120055471 ought
to have been accepted. Accordingly, the Commission remanded the case to
the agency for the further processing as to the May 2003 incidents only.
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0520090125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090125