0520110239
04-12-2011
Robert A. Turner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Robert A. Turner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Request No. 0520110239
Appeal Nos. 0120100608 0120102769
Hearing Nos. 520-2008-00154X, 520-2010-00117X
Agency Nos. 4A-105-0070-07, 4B-105-0001-07
DENIAL
Complainant timely requested reconsideration of the decision in Robert
A. Turner v. U.S. Postal Service, EEOC Appeal Nos. 0120100608 0120102769
(December 10, 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 facts and procedural background are set forth in the previous decision
and are incorporated by reference. In his request to reconsider,
Complainant argues, through his representative, that: (1) the Agency
failed to provide him with notice of his right to request a hearing;
(2) the previous decision erred in finding that he did not object to
a hearing being conducted before the hearing concluded; (3) the Agency
did not process his complaint properly; and (4) the EEOC Administrative
Judge erred by denying his motion to consolidate his two complaints.
As noted by the previous decision, an EEOC Administrative Judge is given
wide latitude in directing the terms of EEOC administrative hearings.
The Administrative Judge's (AJ) decision to remand Complaint 2 back to
the Agency for an investigation was found to have been within the AJ's
discretion. Complainant has not established that there was an abuse of
discretion; he merely reiterates his disagreement with the AJ's decision.
The previous decision also found that the AJ did not abuse his discretion
in denying Complainant's motion for sanctions. As indicated by the
previous decision, when the Agency failed to complete the investigation of
Complaint 2 within 180 days, the AJ issued an order requiring the Agency
to submit the completed investigation and complaint file to the AJ and
Complainant within 15 calendar days from the date of receipt of the order
or risk the imposition of sanctions. The Agency complied with the AJ's
order, and, as a result, the AJ found that no sanctions were warranted.
With respect to his contentions that the Agency violated the AJ's order by
failing to provide him with notice of his right to request a hearing, and
that he objected to the AJ's decision to hold a hearing despite the fact
that he had not requested a hearing, the previous decision specifically
found that Complainant's decision to file a motion with the AJ after
180 days had elapsed since the Agency was tasked with conducting an
investigation constituted a request for a hearing. The decision also
noted that Complainant did not object to a hearing being conducted on
his reprisal claim in Complaint 2 prior to the close of the hearing
proceedings, and he failed to demonstrate how he was harmed by the
hearing process.1 We agree.
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.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision including the specific matters
that he raises in his request, and Complainant has offered no persuasive
reason why this decision should be reconsidered now. Therefore, 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 Nos. 0120100608 & 0120102769
(December 10, 2010) remains the Commission's decisions. 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
____4/12/11______________
Date
1 Although Complainant, in his request, cites pages 108 to 110 of the
Hearing Transcripts as evidence that he did object to a hearing being
conducted, we disagree with his interpretation. The transcripts indicate
that Complainant's representative, during her closing argument, stated
that she never asked for a hearing. When the AJ stated that she "had to
tell him that at the beginning of the morning," her response was that
she "didn't think it was my business. I'm just following the rules."
The AJ then specifically asked her "Are you saying that you don't
want a hearing?" Her response was explain the process of how she and
Complainant ended up at hearing, but she never objected or said that
she did not want the matter adjudicated by an administrative hearing.
See pages 108 - 110 HT.
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0520100129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110239