0520090685
10-30-2009
Gary King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Gary King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 0520090685
Appeal No. 0120080593
Hearing No. 480-2006-00109X
Agency No. 1F-901-0137-05
DENIAL
Complainant timely requested reconsideration of the decision in Gary King
v. U.S. Postal Service, EEOC Appeal No. 0120080593 (August 12, 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).
The previous decision affirmed the agency's implementation of an EEOC
Administrative Judge's (AJ) decision following a hearing, in which the
AJ found that complainant had not been discriminated against based on
his sex, disability or in reprisal for prior protected EEO activity.
Complainant had filed a complaint based on race (Black), age (49),
sex (male), disability (back) and reprisal when on May 18, 2005 he
was placed in emergency off-duty status without pay, and on June 1,
2005 he was issued a Notice of Removal for Inappropriate Conduct/Using
Intimidating Language/Threat. Prior to the hearing, complainant withdrew
the bases of race and age. After a hearing in which he made findings
of fact and credibility determinations, the AJ found that complainant
had not established his prima facie cases of sex, disability or reprisal
discrimination, but that assuming he had made out his prima facie cases,
he had not shown the agency's legitimate, nondiscriminatory reasons to
be pretext for discrimination.
Our previous decision found that the AJ's decision was supported by
substantial evidence in the record, and that the agency's implementation
of the AJ's decision was proper. We addressed complainant's arguments
on appeal and concluded that complainant had not shown that the
agency's actions were a pretext for discrimination. In his request for
reconsideration, complainant argues primarily that the AJ's credibility
determinations, and the lack of weight given to testimony offered
by complainant's witnesses, were in error, and led to an incorrect
determination that complainant had not been discriminated against.
The agency opposes the complainant's request for reconsideration.
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. Complainant's arguments in his request for reconsideration do
not show that the AJ's decision was not supported by substantial evidence,
or that the previous decision was clearly erroneous. The decision in
EEOC Appeal No. 0120080593 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
_____10/30/09_____________
Date
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0520090685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090685