0520140306
10-22-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520140306
Appeal No. 0120132080
Agency No. 4G-752-0195-11
DENIAL
Complainant requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120132080 (September 27, 2013).1 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 the appellate decision, Complainant claimed that the Agency discriminated against him on the bases of sex (male), disability (stress), and in reprisal for prior protected activity when:
1. Since March 7, through 17, 2011, Complainant received less hours than other part-time regular employees;
2. Since March 7, through March 17, 2011, his advanced PS Form 3971s were not approved;
3. On March 15, 2011, he received a letter advising him that he was placed in an Absent Without Leave Status (AWOL) for March 8, and 9, 2011;
4. On March 17, 2011, he was placed on Emergency Placement; and
5. On April 25, 2011, he received a Notice of Proposed Removal for Unacceptable Conduct/Gross Insubordination.
The Agency found that management articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons where pretext for discrimination. The Commission affirmed the finding of no discrimination. Complainant thereafter filed the instant request for reconsideration.
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission will presume that the decision was received within five (5) calendar days of the date on which it was mailed, November 1, 2013. Complainant is presumed to have received the previous decision no later than November 6, 2013. Thirty days from that date is Friday, December 6, 2013. As evidenced by the post mark date, Complainant mailed the request on Monday, December 9, 2013, which was beyond the 30-day limit set by regulation. No reason was provided for the delay.
For the foregoing reasons, the Complainant's request is DENIED. The decision in EEOC Appeal No. 0120132080 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 (P0610)
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 (Z0610)
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
___10/22/14_______________
Date
1 The Commission notes that neither Complainant nor the Agency provided a brief to support its position.
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0520140306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520140306