0520090506
08-07-2009
Douglas C. Hooper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Douglas C. Hooper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Request No. 0520090506
Appeal No. 0120064221
Agency No. 4G-770-0133-00
DENIAL
Complainant timely requested reconsideration of the decision in Douglas
C. Hooper v. United States Postal Service, EEOC Appeal No. 0120064221
(April 9, 2009). 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 his formal complaint, complainant alleged that the agency discriminated
against him on the bases of race (Caucasian), color (White), age (58),
and reprisal for prior protected EEO activity, in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., when:
(1) On March 14, 2003 and continuing, the agency allegedly denied
him a reasonable accommodation; and
(2) On October 5, 2003, the agency took away his bid
assignment.
In EEOC Appeal No. 0120064221, the Commission affirmed the agency's June
7, 2006, final decision finding no discrimination. Specifically, the
Commission analyzed complainant's claims within a disparate treatment
framework, but found no evidence of a discriminatory animus. The prior
decision also analyzed the complainant's claim that he was denied a
reasonable accommodation, and found that, assuming complainant was an
individual with a disability, he did not show that he was "qualified"
within the meaning of the Rehabilitation Act. We therefore, found no
evidence that the agency violated the Rehabilitation Act concerning the
issues at hand.
Complainant now requests reconsideration, and in his brief he contends
that the Commission failed to address the basis of reprisal. Complainant
also reiterates several of his arguments previously made, i.e., that for
a period of decades he has been accommodated with work that he could do,
while having the same limitations. He again contends that there were
no changes in his abilities, and that the agency's assertions about
the changes in the work are merely pretextual. He again points out
that the District Reasonable Accommodation Committee (DRAC) found that
he could be accommodated as a router casing mail on multiple routes.
Additionally, complainant asserts that the appellate decision fails to
acknowledge his assertion that the agency possessed numerous vehicles
which complainant could have used, or he could even have used his own
vehicle, in order to accommodate his need for an air conditioned vehicle.
Finally, complainant asks for a hearing before an Administrative Judge.
Initially, we assure complainant that the basis of reprisal was considered
and disposed of in the appellate decision. The decision makes specific
mention of the fact that complainant alleged reprisal-based discrimination
but that we concluded that he did not prove that the agency was motivated
by discrimination (which includes reprisal-based discrimination) as to the
challenged actions. Secondly, we note that we decline to remand this case
for a hearing, as complainant was provided with an opportunity to obtain
a hearing before an Administrative Judge, but waived such opportunity.1
Finally, as to complainant's reiteration of arguments previously made, we
note that this Commission carefully considered all of the record evidence
at the time it rendered the initial decision in question, and complainant
has offered no persuasive reason why this decision should be reconsidered
now. We remind complainant that a "request for reconsideration is
not a second appeal to the Commission." Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999), at 9-17.
Therefore, after reconsidering the previous decision and the entire
record, the Commission finds that the request fails to meet the criteria
of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 0120064221 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 (P0408)
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 (Z1008)
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
_______8/7/09___________
Date
1 The record shows that complainant initially requested a hearing, which
was scheduled for February 28, 2005. However, on February 25, 2005,
an AJ issued an order acknowledging an agreement between the parties,
that due to complainant's medical condition, he would be allowed to
withdraw his request for a hearing, without prejudice, until June 1, 2005.
The order provided that complainant notify the agency on or before June 1,
2005, if he was medically prepared to continue processing his case and
that he wished to reinstate his complaints on the Commission's docket.
If complainant did not elect to notify the agency on or before June 1,
2005, he would be barred from reinstating his complaints. On November 9,
2005, the agency issued a final action stating it would fully implement
the Administrative Judge's decision. Complainant filed an appeal from
that final action. The Commission subsequently remanded the complaint
to the agency for a decision on the merits. See Hooper v. United States
Postal Serv., EEOC Appeal No. 01A61175 (May 12, 2006).
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0520090506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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