05970622
01-08-1999
Dalbir S. Dhaliwal, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dalbir S. Dhaliwal v. United States Postal Service
05970622
January 8, 1999
Dalbir S. Dhaliwal, )
Appellant, )
)
v. ) Request No. 05970622
) Appeal No. 01955165
William J. Henderson, ) Agency No. 4F-940-1087-94
Postmaster General, ) Hearing No. 370-95-X2188
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On March 22, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in
Dalbir S. Dhaliwal v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Appeal No. 01955165 (February
21, 1997). 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). For the reasons
below, the Commission denies appellant's request.
Appellant filed a complaint in which he alleged that the agency
discriminated against him on the bases of race (Asian) and national
origin (India) by not selecting him as a part-time letter carrier on
January 18, 1994. The agency investigated the complaint and referred
it to an administrative judge (AJ), who issued a recommended finding of
no discrimination. The agency adopted the AJ's recommendation as its
final decision, from which appellant appealed. The previous decision
likewise affirmed the AJ's findings and conclusions.
The AJ found that appellant had established a prima facie case of
discrimination in that he met the minimum qualifications for the letter
carrier position, but was not selected. Some of those selected were of
a different race and national origin than appellant. The AJ also found
that the agency had articulated a legitimate and nondiscriminatory
reasons for not selecting appellant: that appellant's prior job
performance was inadequate, and that he took too long to complete
his assignments. The AJ ultimately determined that appellant failed
to prove that the agency's reasons for not hiring him were pretextual.
Several of appellant's previous supervisors indicated that his performance
in casing and delivering mail was poor, and that appellant frequently
required assistance from other employees. Based upon information received
from appellant's supervisors, the customer services supervisor decided
not to hire him. The AJ also noted that, just prior to appellant's
non-selection, the agency hired two persons as letter carriers who were
of the same race and national origin as appellant.
In order for a case to be reconsidered under 29 C.F.R. � 1614.407(c),
the request must contain arguments or evidence which establishes:
the existence of newly discovered evidence, not previously available;
substantive legal error in a previous decision; or the precedential
nature of the previous decision. Lyke v. United States Postal Service,
EEOC Request No. 05900769 (September 27, 1990). It is not merely a
form of second appeal. Regensberg v. United States Postal Service, EEOC
Request No. 05900850 (September 7, 1990). In this case, appellant's
request makes no reference to the reconsideration criteria. He merely
reargues the merits of his appeal, but does not identify any factual or
legal errors in the previous decision. He has likewise not shown that
the documents he submitted in support of his request constitute new and
material evidence, or that the previous decision is of such exceptional
nature as to have effects beyond the matter now before us.
After a review of appellant's request for reconsideration, the agency's
response thereto, 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. 01955165 remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
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:
JAN 8, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat