01A30928
03-27-2003
Franklin Nicoloudakis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro), Agency.
Franklin Nicoloudakis v. United States Postal Service
01A30928
March 27, 2003
.
Franklin Nicoloudakis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro),
Agency.
Appeal No. 01A30928
Agency No. 1A-086-1029-96
Hearing No. 170-A2-8143X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against him in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Specifically,
complainant alleged that the agency had discriminated against him on
the bases of national origin (Greek-American), disability (back injury
and foot), and reprisal for prior EEO activity when:
(1) on December 27, 1996, he became aware that during pay period 26/96,
his request for leave without pay (LWOP) in lieu of sick leave was not
honored and instead, he was paid for 20 hours of annual leave and 12
hours of sick leave;
on February 7, 1997, he became aware that during pay period 3/97 his
request for LWOP in lieu of sick leave was not honored and instead,
he was paid for 36 hours of annual leave and 4 hours of sick leave; and
on March 26, 1996, management denied his request that all of his PS
Forms 3971, Request for Notification of Absence, dated January 1996,
be changed to read �LWOP in lieu of Sick.�<1>
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, and assuming, without finding that
complainant is an individual with a disability under the Rehabilitation
Act, it is the decision of the Equal Employment Opportunity Commission
to affirm the final agency order because the Administrative Judge's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
March 27, 2003
__________________
Date
1 In Franklin D. Nicoloudakis v. United States Postal Service, EEOC
Request No. 05981139 (February 2, 2001), we reversed the agency's
procedural dismissal of the instant complaint.