0520120561
01-11-2013
Sergio A. Martinez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Sergio A. Martinez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520120561
Appeal No. 0120121753
Agency No. 1G-321-0004-12
DENIAL
Complainant timely requested reconsideration of the decision in Sergio A. Martinez v. U.S. Postal Service, EEOC Appeal No. 0120121753 (July 6, 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).
In the underlying case, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the bases of race/national origin (Hispanic),1 sex (male), religion (unspecified), color (unspecified), and age (47) when, on October 27, 2011, management: told him to hurry up, said they did not like his answer when he responded, ordered him to go to the office, called his union representative, and gave him instructions on where to work and for how long.
The appellate decision affirmed the Agency's dismissal of Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the appellate decision found that Complainant failed to show that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. In addition, the appellate decision found that the claim, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that he had been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment.
In his request for reconsideration, dated July 25, 2012, Complainant stated that more information was to follow as soon as it became available. On or about August 7, 2012, Complainant submitted letters from co-workers and medical documentation related to the events of October 27, 2011.
After reviewing the appellate 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. 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, Ch. 9, � VII (Nov. 9, 1999). A request for reconsideration is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Id.
Here, we find no evidence that Complainant has met the criteria for reconsideration. At the outset, we note that "the requesting party must submit any supporting documents or briefs at the time the request is filed." Id. (emphasis added). Thus, unlike the filing of an appeal, our regulations do not provide an additional period of time for a party to submit arguments and evidence in support of a request for reconsideration. Moreover, even if we were to have considered Complainant's untimely August 7, 2012 submission, we find that the submitted documents do not establish that the appellate decision clearly erred in finding that the events of October 27, 2011 were not sufficiently severe or pervasive to state a claim of harassment.
The decision in EEOC Appeal No. 0120121753 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
__1/11/13________________
Date
1 Although Complainant identified race (Hispanic) as a basis on his formal complaint, the Commission considers the term "Hispanic" to denote a national origin rather than a race.
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0520120561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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