Rakesh D. Bhargava, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionMar 16, 2005
05a50562 (E.E.O.C. Mar. 16, 2005)

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.