0520110339
04-21-2011
Steven W. Utsey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 0520110339
Appeal No. 0120110422
Agency No. 1F-914-0008-10
DENIAL
Complainant timely requested reconsideration of the decision in Steven
W. Utsey v. U.S. Postal Service, EEOC Appeal No. 0120110422 (March
10, 2011). 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 here by reference. We note the following
salient facts: On January 8, 2010, Complainant was placed on Emergency
Placement in Off-Duty Status and, on March 2, 2010, he was issued a
Notice of Removal. Assuming, arguendo, that he established a prima
facie case of reprisal discrimination, the previous decision found that
the Agency articulated a legitimate non-discriminatory reason for its
actions and that Complainant did not establish pretext. Specifically,
a Social Worker, at a hospital Complainant was visiting, informed
Agency officials that he made a threat towards one of his supervisors.
Pursuant to the Agency's Zero Tolerance Policy and a Postal Service Office
of Inspector General's investigation, management took the actions noted
above. The decision also noted that Complainant was previously issued
two Letters of Warning and three suspensions in 2008 and 2009.
In his request to reconsider, Complainant, in pertinent part, denied
making the threat; and argued that he established the first three
elements of a prima facie case of reprisal discrimination. 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.
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. The Commission has long held that
it is improper to simply reargue the facts in a reconsideration request.
See Bartlomain v. USPS, EEOC Request No. 05910436 (October 10, 1991).
Furthermore, although Complainant denies making the threat, there is
no dispute that the Agency's actions were taken because they believe
the threat to have been made. Like the previous decision, we find no
evidence of pretext or discriminatory animus. We also note that the
previous decision, for purposes of its analysis, assumed that Complainant
established a prima facie case; therefore, we find no error on the part
of the previous decision with respect to Complainant's assertion that
he was able to establish three of the four required elements.
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. 0120110422 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
_____4/21/11_____________
Date
2
0520110339
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110339