0520090582
12-10-2009
James D. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
James D. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520090582
Appeal No. 0120082867
Hearing No. 490200800003X
Agency No. 1H-381-0042-07
DENIAL
On July 25, 2009, complainant requested that the Commission reconsider
the decision in James D. Walker v. U.S. Postal Service, EEOC Appeal
No. 0120082867 (September 9, 2008). EEOC Regulations provide that the
Commission may, in its discretion, grant a Request to reconsider (RTR) 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). For the reasons that follow,
the Commission DENIES complainant's RTR.1
The Commission's regulations state that a complainant must submit a RTR
within 30 days of receipt of the prior decision. 29 C.F.R. �1614.405(b).
In addition, as stated on the Certificate of Mailing, the Commission
assumes receipt by the complainant within five calendar days; in this
case, on or before September 14, 2008, with any RTR due on or before
October 14, 2008. In the RTR, complainant acknowledged that the events
and reasons for his removal were true and that his RTR was filed untimely.
However, complainant, through his current representative, cites several
extenuating reasons for Commission review and reconsideration:
(a) his representative died in February 2009, and complainant became
confused about his legal options;
(b) complainant was indicted in a criminal complaint on June 26, 2007;
(c) his vehicle was stolen in April 2007, with all documents in support
of his defense;
(d) the union provided no assistance to him;
(e) his financial situation did not allow him to obtain other counsel;
(f) complainant's mental state did not allow him to respond to the
appellate decision; and
(g) complainant's health, and that of his mother, restrained him from
responding to the appellate decision.
Even if any of these reasons could account for an nine-month delay in
filing the RTR at issue, complainant's submission provides no probative
evidence that complainant's physical or mental status prohibited him
from taking action, such as a doctor's report or other medical testimony
demonstrating that complainant was not capable and unable to protect
his rights during the period from October 2008, through July 2009.
Further, complainant's explanations were somewhat disingenuous; that
is, as to reasons (a) and (d), his representative's incapacity or
the union's failure to assist do not excuse complainant's timeliness,
since he is at all times responsible for prosecution of his complaint.
See 29 C.F.R. � 1614.605(e). As to reason (b), complainant's indictment
occurred in June 2007, over a year before the appellate decision was
issued. We note that complainant filed his appeal below in a timely
manner on June 13, 2008. Finally, the impact of reasons (f) and (g)
is doubtful at best, given that these events took place in May 2006.
None of the reasons proffered by complainant, taken singly or together,
justify an extension of time for filing the RTR.
CONCLUSION
After review of the previous decision and the record herein and for
the above reasons, the Commission finds that complainant's request is
untimely, and it is the decision of the Commission to DENY the request.
The decision of the Commission in Appeal No. 0120082867 remains the
decision of the Commission. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
COMPLAINANT'S RIGHTS ON A REQUEST FOR RECONSIDERATION
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
December 10, 2009
Date
1 Complainant claimed that the agency discriminated against him on the
bases of race (Native American), national origin (Chickamauga Cherokee),
sex (male), color (unspecified), disability (heart surgery, bipolar
disorder), age (65), and in reprisal for prior protected activity.
After an investigation of the complaint, the EEOC Administrative Judge
(AJ) issued a decision without a hearing, finding that the agency stated
a legitimate, nondiscriminatory reason for removing complainant and that
he did not demonstrate pretext.
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0520090582
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090582