05990625
05-18-2000
Daniel J. Berthelot, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Daniel J. Berthelot v. United States Postal Service
05990625
May 18, 2000
Daniel J. Berthelot, )
Complainant, )
)
v. ) Request No. 05990625
) Appeal No. 01985773
William J. Henderson, ) Agency No. 4G-770-0480-98
Postmaster General, )
United States Postal Service,)
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
Daniel J. Berthelot (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Daniel J. Berthelot v. United States Postal Service,
EEOC Appeal No. 01985773 (March 2, 1999). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at and hereinafter referred to as 29 C.F.R. �1614.405(b)).<1> The
party requesting reconsideration must submit written argument or evidence
which tends to establish one of the following two criteria: either that
the appellate decision involved a clearly erroneous interpretation of
material fact or law, 29 C.F.R. �1614.405(b)(1); or that the decision
will have a substantial impact on the policies, practices, or operations
of the agency, 29 C.F.R. �1614.405(b)(2). For the reasons which follow,
complainant's request is DENIED.
On May 5, 1998, complainant, then a Letter carrier, PS-5, filed a
complaint alleging that the agency discriminated against him on the
bases of physical disability and reprisal when his supervisor harassed
him over the amount of mail he had cased and told him that if he did not
want to carry the mail he should give his uniforms away. By final agency
decision (FAD) dated July 13, 1998, the agency dismissed the complaint as
untimely filed, noting that complainant received his "Notice of Right to
File"on May 4, 1998, but did not file his formal complaint until May 23,
1998, after the expiration of the 15-day period for filing allowed by the
Commission's regulations. The agency noted, as an alternative ground for
dismissal of the complaint, that the complaint failed to state a claim, in
that complainant had not alleged a loss or harm with respect to any term,
condition, or privilege of employment, nor had he shown that any concrete
action had been taken against him on account of the incident alleged.
The previous decision affirmed the FAD.
In his request for reconsideration, complainant acknowledges that his
complaint was filed late but argues, as he did on appeal, that he was
late in filing because the agency changed its policy with regard to when
a complainant can meet in person with his designated EEO representative
(when the representative is also an agency employee). The Commission
finds this argument to be without merit. Complainant was in contact with
his representative, and was well-aware of the time limit for submission
of his formal complaint. Further, the formal complaint submitted late by
complainant after consulting with his representative was identical to the
informal complaint which previously had been submitted. Accordingly, the
Commission finds that complainant's request meets neither of the criteria
for reconsideration, and hereby is DENIED.<2> The decision in Appeal
No. 01985773 remains the final decision of the Commission in this case.
There is no further right of administrative appeal from this decision.
STATEMENT OF RIGHTS
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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 (Z1199)
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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Opportunity Specialist
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Given its determination that complainant's complaint was untimely filed,
the Commission need not address the agency's conclusion that the complaint
also failed to state a claim.