0520110122
01-07-2011
Ricky A. Phillips, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Ricky A. Phillips,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Request No. 0520110122
Appeal No. 0120103008
Hearing No. 430-2008-00494X
Agency No. 1K-271-0012-08
DENIAL
Complainant timely requested reconsideration of the decision in Ricky A. Phillips v. U.S. Postal Serv., EEOC Appeal No. 0120103008 (Sept. 30, 2010). 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).
The record reflects the following chronology of events. Complainant worked as a Mailhandler at the Agency's Processing and Distribution Center in Greensboro, North Carolina. The record indicated that on January 31, 2008, Complainant reported for work. Complainant's duties include driving a forklift. Complainant indicated that he spoke to the Acting Manager on that day asking for use of one of the nine new forklifts. The Acting Manager told him that the new forklifts were in use and that the airmail forklift was available. Complainant asserted that the airmail forklift aggravated his condition. The Acting Manager believed that all the fork lifts were the same and denied Complainant's request. Following the exchange with the Acting Manager, Complainant came upon his supervisor (Supervisor). The Supervisor inquired about the exchange with the Acting Manager. After Complainant explained his request for a different forklift, the Supervisor spoke with the Dock Supervisor. Then, Complainant was provided with the appropriate forklift.
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (spinal injury) when on January 31, 2008; Complainant was allegedly denied a reasonable accommodation when the Acting Manager failed to provide Complainant with a new forklift.
After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ granted the Agency's motion for a decision without a hearing and found that Complainant failed to establish that he was denied a reasonable accommodation as alleged. Complainant appealed the Agency's final order adopting the AJ's finding of no discrimination.
In our prior decision, we found that Complainant has not shown that he was denied a reasonable accommodation. Specifically, the Commission stated "[a]lthough the Acting Manager denied the request, subsequently the Supervisor asked Complainant about the situation. The Supervisor inquired about a "new" forklift and the Dock Supervisor provided Complainant with the appropriate forklift."
Complainant, in his request, asserts that the Commission's prior decision affirming the Agency's final order is improper. Complainant states that he was provided the appropriate forklift on the date in question; however, since then he has had to drive the old forklift.
Upon review of the record, we find that the Commission's prior decision properly affirmed the Agency's final order adopting the AJ's finding of no discrimination. The record reflects that Complainant failed to respond to the Agency's motion for a decision without a hearing. In addition, Complainant did not submit a statement or brief in support of his initial appeal. The Commission's prior decision properly stated "[w]e note that Complainant has not challenged the Supervisor's affidavit indicating that Complainant was provided with an appropriate forklift." We remind complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Nov. 9, 1999), Chapter 9. Based on these circumstances, we will not address herein Complainant's new argument set forth in his request.
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. 0120103008 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
January 7, 2011
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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