Frank Gallardo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionDec 7, 2001
05990986 (E.E.O.C. Dec. 7, 2001)

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