05a50562
03-16-2005
Rakesh D. Bhargava, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Rakesh D. Bhargava v. United States Postal Service
05A50562
March 16, 2005
.
Rakesh D. Bhargava,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Request No. 05A50562
Appeal No. 01A50721
Agency No. 4J-600-0119-02
DENIAL
Rakesh D. Bhargava (complainant) timely requested reconsideration of
the decision in Rakesh D. Bhargava v. United States Postal Service, EEOC
Appeal No. 01A50721 (January 31, 2005). 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). However, 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.
In his request for reconsideration, complainant requests that the
Commission increase the number of hours of excused administrative leave
(from 1.5 hours to 43.83 hours) that he was awarded in the decision
on appeal, to cover the period of July 21, 2004 - August 20, 2004.
The record indicates, however, that, complainant's breach allegation
which he raised on July 26, 2004, was limited to the single day, July 21,
2004, and did not extend to August 20, 2004. Additionally, complainant
raises new claims concerning a Fitness-For-Duty examination, which he
did not previously raise on appeal. The Commission cannot consider new
allegations of settlement breach at this stage.
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. 01A50721
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. The Commission directs the agency to take corrective
action in accordance with this decision and the Order below.
ORDER
The agency is ordered to take the following remedial action, to the
extent that it has not already done so:
The agency shall specifically enforce the settlement agreement. The
agency shall, within 30 days of the date this decision becomes final,
provide complainant with 1.5 hours of excused administrative leave for
July 21, 2004, and restore all annual or sick leave, if any, that was
taken that day. A copy of documentation that demonstrates that the
agency has provided administrative leave and effected this increase
in complainant's annual or sick leave balance<1> must be sent to the
Compliance Office as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
March 16, 2005
__________________
Date
1 It is not clear from the record
what type of leave, if any, was taken by complainant.