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