05a00127
12-05-2000
Douglas H. Stup, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.
Douglas H. Stup v. United States Postal Service
05A00127
December 5, 2000
.
Douglas H. Stup,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area),
Agency.
Request No. 05A00127
Appeal No. 01986325
Agency No. 1D-221-1131-95
Hearing No. 100-97-7860X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Douglas
H. Stup v. United States Postal Service, EEOC Appeal No. 01986325
(September 13, 1999).<1> EEOC Regulations provide that the Commission
may, in its discretion, 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).
Complainant filed a formal EEO complaint on October 5, 1995 alleging
discrimination on the bases of race (White), age (44), national origin
(American), and/or sex (Male) by his supervisor when his supervisor
initially denying his request for leave on June 21, 1995 for July
21, 1995.<2> A hearing before an AJ was conducted on April 22, 1998.
The AJ found that complainant failed to prove discrimination on any basis
alleged. Specifically, the AJ found from the record that complainant's
supervisor (S1) denied his leave request because of her belief that
too many employees were already scheduled for leave on the same day.
The AJ noted that the record included leave records indicating that four
subordinates of S1 had previously requested leave on the day complainant
also sought leave. While a review of the Master Schedule indicated
that only one rather than four employees were actually scheduled to
be absent from work on July 21, 1995, the testimonial evidence showed
that S1, in fact, expected four employees to be absent. The AJ noted
that S1 credibly testified that she did not review the Master Schedule
before she decided to deny complainant's leave request. According to
S1, she relied on scheduling information contained in the leave book
rather than the Master Schedule when deciding whether she could grant
complainant's leave request. Based upon the record, the AJ was not
persuaded that the Master Schedule and the leave book held identical
scheduling information. Accordingly, given the evidence of record, the
AJ found that S1 expected four employees to be absent on July 21, 1995
and that is why she denied complainant's leave request. Furthermore,
the AJ concluded that even if S1 violated the collective bargaining
agreement by denying complainant's leave request, this alone did not
establish that S1 was motivated by discriminatory animus. In addition,
S1's approval of five different prior leave requests made by complainant
belies any motivation to harass or persecute him. Considering the entire
record, the AJ found insufficient evidence of discriminatory animus.
The agency adopted the findings and conclusions of the AJ. On appeal,
the Commission affirmed the FAD. On request for reconsideration,
complainant generally reargues the facts which were previously presented
to and considered by the AJ. In addition, complainant generally argues
the merits of his reprisal claim.
After a review of the complainant's request for reconsideration, 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.<3> The decision
in EEOC Appeal No. 01986325 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 5, 2000
__________________
Date
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
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Initially complainant also alleged discrimination based upon reprisal
(prior EEO activity), however, on March 27, 1998, the reprisal allegation
was dismissed by the administrative judge (AJ) prior to the hearing.
Complainant did not object to such dismissal at the hearing, nor did
complainant raise an objection on appeal.
3 Particularly with respect to the dismissal of complainant's reprisal
claim, we find that complainant failed to raise the issue on appeal.
In addition, on request for reconsideration, complainant fails to
articulate how the appellate decision involved a clearly erroneous
interpretation of material fact or law. Accordingly, there is no basis
to consider complainant's reprisal claim herein.