05990098
05-10-2001
Gary L. Thomas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Gary L. Thomas v. United States Postal Service
05990098
May 10, 2001
.
Gary L. Thomas,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 05990098
Appeal No. 01981048
Agency No. 4H-370-1148-95
Hearing No. 250-95-8249X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Gary
L. Thomas v. United States Postal Service, EEOC Appeal No. 01981048
(September 21, 1998). 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).
The record reflects that during the relevant period, complainant was
working as a part time flexible carrier at the Oak Ridge Post Office,
Oak Ridge, Tennessee. On January 4, 1995, complainant was issued a
letter of separation for failure to meet the standards required to
satisfy his probationary requirements. Complainant subsequently filed
a formal complaint of discrimination alleging disability discrimination
under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Complainant then requested
an evidentiary hearing before the Commission. On August 12, 1997,
an Administrative Judge (AJ) issued a finding of no discrimination.
The agency adopted the AJ findings in its final decision of October 7,
1998, which complainant appealed. The Commission affirmed the agency
decision. In his request for reconsideration, complainant contends that
he attempted to amend his formal complaint in February, 1995 to include
the additional bases of color, religion, sex, national origin, age, and
reprisal for prior protected activity. However, we note that the record
does not reflect that complainant responded to the agency's acceptance
letter of March 2, 1995 which identified disability as the sole basis
of the alleged discrimination and contained instructions on how to
properly amend the complaint to include additional bases. Moreover,
there is no indication that complainant sought to pursue additional
bases before the AJ, or that he claimed on appeal that he had attempted
to raise the bases below. We find that complainant had the opportunity
to raise these additional bases at numerous times throughout the process,
and is therefore barred from raising them at this late stage.
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. 01981048 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
May 10, 2001
__________________
Date