Andre I. Russell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 19, 2007
0520070824 (E.E.O.C. Sep. 19, 2007)

0520070824

09-19-2007

Andre I. Russell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Andre I. Russell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 0520070824

Appeal No. 0120072102

Agency No. 4H300029005

DENIAL

Complainant timely requested reconsideration of the decision in Andre

I. Russell v. United States Postal Service, EEOC Appeal No. 0120072102

(July 10, 2007). 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 Commission's previous decision agreed with the agency and

the Administrative Judge (AJ) that a decision without a hearing was

appropriate and that the agency did not discriminate against complainant.

In his complaint, complainant claimed discrimination based on race

(black) and sex (male) when the agency delayed his conversion to Rural

Carrier Associate (RCA) until May 2005. The agency explained that he

could not be converted until his name was listed on a Register, and his

name first appeared on the March 28, 2005, list. Complainant did not

demonstrate pretext, i.e., that the agency's reason was not true and

based on discriminatory considerations of race and sex.

In his request, complainant referred us to his brief on appeal. In order

to merit the reconsideration of a prior 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 merely an

opportunity for a 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 finds that

the complainant's request does not meet the regulatory criteria of 29

C.F.R. � 1614.405(b), in that, the request does not identify a clearly

erroneous interpretation of material fact or law, nor does it show that

the underlying decision will have a substantial impact on the policies,

practices or operation of the agency.1

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. 0120072102 remains the

Commission's final decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

NOTICE OF RIGHTS - REQUEST TO RECONSIDER

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

____9/19/07______________

Date

1 The Commission's regulations require that complainant demonstrate

that the previous decision was flawed or would substantially impact the

agency's operation. 29 C.F.R. � 1614.405(b). Here, it was complainant's

burden to present such argument or evidence to meet one of the criteria;

mere reference to his appeal brief does not meet his obligation.

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0520070824

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0520070824