Steven W. Utsey, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionApr 21, 2011
0520110339 (E.E.O.C. Apr. 21, 2011)

0520110339

04-21-2011

Steven W. Utsey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.


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