0520100093
04-16-2010
Steve P. Harrison, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Steve P. Harrison,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520100093
Appeal No. 0120082457
Agency No. 4C-440-0231-07
DENIAL
Complainant timely requested reconsideration of the decision in Steve
P. Harrison v. U.S. Postal Service, EEOC Appeal No. 0120082457 (September
25, 2009). 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).
Complainant, a part-time regular City Carrier at the agency's Cleveland,
Ohio Post Office, filed a formal EEO complaint alleging that the agency
discriminated against him on the bases of race (African American),
color (black), and reprisal (prior protected activity under Title VII)
when he was not paid for bereavement leave, his position was abolished,
and he was reassigned.1
Although advised of his right to request a hearing before an EEO
Administrative Judge (AJ), complainant did not do so. Accordingly,
the agency proceeded to issue a final agency decision (FAD), in which
it found no discrimination.
The agency explained that complainant was not eligible for bereavement
leave because the decedent was not an immediate family member,
and although advised that he could receive emergency annual leave,
complainant failed to call in each of day of his absence as instructed,
and was therefore carried as absent without leave. Regarding the
reassignment and abolishment of complainant's position, the agency
explained that complainant's manager decided that the position was no
longer needed, and subsequently discovered that the position had actually
been abolished by a different manager two years before. The agency
concluded that complainant had not adduced evidence to show that the
proffered explanations were pretext for discrimination.
In his request for reconsideration, complainant argues that the agency's
investigative affidavits are "deceitful." Complainant requests that we
remand his complaint for a period of discovery and a hearing before an
EEOC AJ.
Upon review of the record, we find that complainant's request does not
meet the criteria for reconsideration, in that it does not show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law, or the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. Complainant was
provided with a copy of the investigative report and was advised of
his right to request a hearing during the processing of his complaint.
That he elected not to do and now regrets his choice does not provide
a basis for reopening the appellate decision.
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. 0120082457 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 (P0408)
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 (Z1008)
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
April 16, 2010
Date
1 Complainant's complaint contained additional issues which were dismissed
by the agency. Complainant did not contest the dismissal on appeal.
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0520100093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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