Albert A. Straka, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 27, 2001
05a01139 (E.E.O.C. Feb. 27, 2001)

05a01139

02-27-2001

Albert A. Straka, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Albert A. Straka v. United States Postal Service

05A01139

02-27-01

.

Albert A. Straka,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A01139

Appeal No. 01A03514

Agency No. 4A-070-0156-97

DECISION ON REQUEST TO RECONSIDER

On August 12, 2000, Albert A. Straka (complainant) timely initiated a

request to the Equal Employment Opportunity Commission to reconsider the

decision in Albert A. Straka v. William J. Henderson, Postmaster General,

United States Postal Service, EEOC Appeal No. 01A03514 (July 19, 2000).

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision where the party demonstrates that:

(1) the previous decision involved a clearly erroneous interpretation of

material fact or law; or (2) the decision will have a substantial impact

on the policies, practices or operation of the agency. 29 C.F.R. �

1614.405(b).<1> For the reasons set forth below, the complainant's

request is denied.

The issue presented is whether complainant's request meets the criteria

for reconsideration.

Complainant received his Notice of Final Interview (NOFI) on July 28,

1997, and filed his formal complaint on December 8, 1999, claiming that

the agency discriminated against him on the basis of age (DOB 11-11-24)

when he was removed for failure to follow instructions, i.e., using his

personal car for mail delivery in defiance of instructions and postal

regulations. The previous decision found that his formal complaint was

filed beyond the 15-day time period and that he presented no persuasive

arguments or evidence to warrant an extension of the time period.

Complainant contacted an EEO counselor to challenge his removal, which

was effective July 18, 1997. Although he claimed to have filed a timely

complaint, the agency had no record of receipt of his complaint, nor

did complainant show that the agency had received it. Further, we note

that he took no action for two-and-one-half years. Also, the records

shows that complainant engaged in prior EEO activity and was aware of

the agency's process and time limitations for filing a formal complaint.

Complainant has filed a request that the Commission reconsider the

previous decision. He argued that because the agency "controls

submissions, time limits, and investigates itself," it carried the

burden in response to complainant's defense. In order to merit the

reconsideration of a prior Commission decision, the requesting party

must submit written argument that tends to establish that at least one

of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's

scope of review on a request for reconsideration is narrow and is

not a form of second appeal. Lopez v. Department of the Air Force,

EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,

EEOC Request No. 05900850 (September 7, 1990).

The Commission's regulations state that a complainant must file his formal

complaint within 15 days of receipt of the NOFI. 29 C.F.R. � 1614.106(b).

While these time limits are subject to waiver, estoppel and equitable

tolling, complainant has not offered sufficient reason to overcome his

tardy filing. 29 C.F.R. � 1614.604(c). For these reasons, we agree with

the previous decision's determination that complainant's formal complaint

was untimely and properly dismissed. 29 C.F.R. � 1614.107(a)(b).

CONCLUSION

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

complainant's request fails to meet any of the criteria of 29 C.F.R. �

1614.405(b), and it is the decision of the Commission to deny the

complainant's request. The decision of the Commission in EEOC Appeal

No. 01A03514 (July 19, 2000) remains the Commission's final decision.

There is no further right of administrative appeal from a decision of

the Commission on a request for reconsideration.

STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

___02-27-01_______________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.