0520090642
10-30-2009
Arthur Orzel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Arthur Orzel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Request No. 0520090642
Appeal No. 0120080577
Agency No. 1J487000206
DENIAL
Complainant timely requested reconsideration of the decision in Arthur
Orzel v. U.S. Postal Service, EEOC Appeal No. 0120080577 (July 24, 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).
In his formal complaint, complainant alleged that he was subjected
to race-based discrimination when he did not receive a promotion.
Complainant subsequently requested a hearing before an Administrative
Judge (AJ), who issued a decision, without first holding a hearing,
in favor of the agency. In our appellate decision, EEOC Appeal
No. 0120080577, the Commission affirmed the agency's final order
implementing the AJ's finding that complainant did not establish
race-based discrimination.
In his request for reconsideration, complainant asserts that contrary
to what is stated in footnote #1 of the appellate decision, he did not
withdraw the basis of race discrimination. In addition, complainant
urges that the instant complaint contains genuine issues of material fact
that ought to have gone to hearing. Complainant additionally reiterates
his contention that the two statements accompanying his appeal brief
"were meant to supply context and clarification and should not be
considered as new evidence." Finally, complainant asserts that the AJ
never issued a Notice of Intent to issue a decision without a hearing.
Complainant requests that the Commission remand the case for a hearing.
Initially, we note that footnote #1 of the appellate decision contains
a typographical error, namely, that complainant withdrew the basis
of race. It ought to have read that complainant withdrew the basis of
age (in addition to disability, religion and reprisal). Nevertheless,
the appellate decision addressed in detail, the non-promotion action on
the basis of race discrimination, concluding that complainant failed to
establish a discriminatory motive.
As to complainant's claim that the statements that he offered on
appeal were "clarification" statements and not new evidence, we note
that the previous decision properly rejected this argument. 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 (rev. Nov. 9, 1999), at 9-17.
As to complainant's assertion that the AJ did not issue a Notice of Intent
to issue a decision without a hearing, we find that this was harmless
error. First, we note that the parties engaged in ample discovery
before the agency filed its Motion for a decision without a hearing.
Second, complainant had an opportunity to reply to the agency's Motion,
and in fact submitted more than one response in opposition to the Motion
before the AJ issued her decision. Consequently, we do not find that
he was prejudiced by the AJ's failure to issue a Notice of Intent to
issue a decision without a hearing.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question, and complainant has
offered no persuasive reason why this decision should be reopened now.
Therefore, 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. 0120080577 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
________10/30/09__________
Date
2
0520090642
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090642