05990986
12-07-2001
Frank Gallardo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Frank Gallardo v. United States Postal Service
05990986
December 7, 2001
.
Frank Gallardo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 05990986
Appeal No. 01975421
Agency No. 1F-901-1201-96
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Frank Gallardo v. United
States Postal Service, EEOC Appeal No. 01975421 (June 25, 1999).
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).
In his formal complaint filed on August 17, 1996, complainant alleged
that he was discriminated against on the bases of his race (Latino),
color (Brown/Red), religion (Catholic), sex (male), national origin
(Mexican/American Indian), disability (back), and in reprisal for prior
protected activity when the following occurred: (1) on May 6, 1996,
he was disrespected by the Station Manager; (2) he was issued a seven
day suspension dated May 16, 1996; and (3) on July 26, 1996, his pay
check for the period 15-96 reflected eighty hours of leave without pay.
The appellate decision affirmed the agency's finding of no discrimination.
In his request for reconsideration, complainant submits what he calls
�new and material evidence� that was not available when the previous
decision was issued. Specifically, this evidence includes complainant's
and a union officer's statements concerning their both witnessing a
fight which occurred in the work place on December 6, 1996. Since there
is no explanation why this evidence was not submitted when complainant
filed his appeal in 1997, we decline to find that the appellate decision
involved a clearly erroneous interpretation of material fact.
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. The decision
in EEOC Appeal No. 01975421 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 7, 2001
__________________
Date