0520130143
05-17-2013
Randall Davis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Randall Davis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520130143
Appeal No. 0120113310
Agency No. 4J-630-0077-11
DENIAL
Complainant timely requested reconsideration of the decision in Randall Davis v. U.S. Postal Service, EEOC Appeal No. 0120113310 (October 19, 2012). 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).
Complaint filed a formal complaint alleging race, color, and sex discrimination in connection with being placed in off-duty status and being issued a notice of removal. The Agency dismissed the complaint, in relevant part, for untimely EEO counseling, noting that while the alleged discrimination occurred in January and February of 2010, Complainant did not contact an EEO Counselor until March 6, 2011, well beyond the 45-day limitation period for counselor contact. The previous decision affirmed, noting that Complainant had not advanced persuasive argument or evidence to warrant an extension of the limitation period.
In his request for reconsideration, Complainant argues for the first time that because he was not present in the workplace from January 2010 on, he had no access to posted EEO information in the workplace. Complainant further states that, on the advice of his union representative, he had no contact with the Agency while a grievance was pending during that time.
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 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
We note that, on appeal, Complainant advanced no argument or provided no evidence regarding the timeliness of his EEO Counselor contact, instead arguing the merits of his complaint. It is only on request for reconsideration that Complainant has raised any argument regarding timeliness. We decline to consider for the first time on reconsideration an argument that could have, and should have, been raised on appeal.
After reviewing 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. 0120113310 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 (P0610)
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 (Z0610)
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
May 17, 2013
Date
2
0520130143
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130143