Benjamin Davis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 15, 1999
05990225 (E.E.O.C. Apr. 15, 1999)

05990225

04-15-1999

Benjamin Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Benjamin Davis v. United States Postal Service

05990225

April 15, 1999

Benjamin Davis, )

Appellant, )

)

v. ) Request No. 05990225

) Appeal No. 01982245

William J. Henderson, ) Agency No. 1-H-331-0050-97

Postmaster General, )

United States Postal Service, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On December 10, 1998, Benjamin Davis (appellant) timely initiated

a request to the Equal Employment Opportunity Commission (EEOC) to

reconsider the decision in Davis v. United States Postal Service, EEOC

Appeal No. 01982245 (November 27, 1998). EEOC Regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and

the previous decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). Appellant's request

is denied.

The record indicates that appellant filed an EEO complaint alleging

discrimination based on race (Black) and reprisal when he was given an

official discussion. The record indicates that appellant was given the

discussion for using inappropriate language around a postal customer. The

agency dismissed the complaint for failure to state a claim and the

previous decision affirmed without substantive comment. In his request

for reconsideration, appellant disagrees with the previous decision and

provides statements, some of which are already in the record.

Based on the record before us, the Commission finds no reason to disturb

the previous decision. Appellant's complaint dealt with the discussion

he was given by his supervisor, and he has not shown he suffered a harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Dept. of the Air Force, EEOC

Request 05931049 (April 21, 1994). Further, appellant did not show a

"direct personal deprivation at the hands of the employer." Id.

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds appellant's request

does not meet the criteria of 29 C.F.R. �1614.407(c), and it is the

decision of the Commission to deny appellant's request. The decision

of the Commission in Appeal No. 01982245 remains the Commission's final

decision. There is no further right of administrative appeal from the

decision of the Commission on this request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 15, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat