John F. Reider, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 8, 2009
0520090316 (E.E.O.C. May. 8, 2009)

0520090316

05-08-2009

John F. Reider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


John F. Reider,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 0520090316

Appeal No. 0120070679

Hearing No. 340-2005-00603X

Agency No. 4F-920-0118-02

DENIAL

Complainant timely requested reconsideration of the decision in John

F. Reider v. United States Postal Service, EEOC Appeal No. 0120070679

(February 24, 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).

In the appellate decision, the record revealed that complainant had

entered into a settlement agreement with the agency. Approximately two

years later, complainant filed a formal complaint in which he alleged that

he had been harassed and retaliated against on the bases of disability

(back, right foot), age (42), and in reprisal for prior protected

activity when he was subjected to nine various incidents.1 An EEOC

Administrative Judge (AJ) issued a decision without a hearing. The AJ

found that claim (5) failed to state a claim and the remaining claims

were dismissed as the AJ found that complainant's true complaint was that

the agency had breached its obligations under the settlement agreement.

The agency issued a final order fully implementing the AJ's decision.

The Commission found that the AJ had properly dismissed claim (5) for

failure to state a claim. The Commission also found that claims (2),

(6), and (7) failed to state actionable claims under our regulations.

With respect to claims (1), (3), and (4), the Commission found that the

AJ had erred in that this claims were part of a harassment claim and not

a complaint of settlement breach. The Commission remanded these claims

to the agency for further processing.

In his request for reconsideration, complainant contends that all of

his claims should be considered as part of his harassment complaint.

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. The Commission finds that complainant failed to show that the

appellate decision involved a clearly erroneous interpretation of material

fact or law, or that the appellate decision will have a substantial impact

on the policies, practices, or operations of the agency. Upon review,

we agree that claims (2), (5), (6) and (7) were properly dismissed for

failure to state claim and should not be part of complainant's harassment

claim. Accordingly, the decision in EEOC Appeal No. 0120070679 remains

the Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

ORDER

With regard to the matters raised in claims (1), (3), and (4), the

agency shall submit to the Hearings Unit of the Los Angeles District

Office a copy of the complaint file within fifteen (15) calendar days of

the date this decision becomes final. The agency shall provide written

notification to the Compliance Officer at the address set forth below that

the complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the remanded harassment

claim in accordance with 29 C.F.R. � 1614.109, and the agency shall

issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, D.C. 20013. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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

05/08/09

__________________

Date

1 (1) on an unspecified date, he was isolated and branded as a

"problem employee;" (2) on unspecified dates, he was denied union

representation; (3) on March 8, 2002, he was subjected to an improper

investigative interview; (4) on or about March 23, 2002, his removal

from his previously assigned duties contributed to his back injury;

(5) on October 10, 2002, USPS Labor Relations provided unauthorized

documents to the union in retaliatory and disciplinary union proceedings

against him; (6) on or about November 7, 2002, management unilaterally

withdrew from an unspecified mediation; (7) on an unspecified date, he

agreed to withdraw a pending EEO pre-complaint after management agreed

to rescind two Letters of Warning (LOWs), and the LOWs were accompanied

by other unspecified retaliatory actions; (8) on January 16, 2002, he

was set up by management as a pretext to remove him from checking in/out

carriers; and (9) on February 28, 2002, and March 2, 2002, he was set

up by management as a pretext to remove him from delivering Express Mail.

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0520090316

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013