0520090590
09-17-2009
John Mitchell, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
John Mitchell, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 0520090590
Appeal No. 0120080381
Agency No. 4F-890-0015-06
DENIAL
Complainant timely requested reconsideration of the decision in John
Mitchell, Jr., v. United States Postal Service, EEOC Appeal No. 0120080381
(June 19, 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 his formal complaint, complainant alleged that the agency discriminated
against him and failed to provide him a reasonable accommodation on
the basis of disability (severe rhinitis and chronic epicondylitis,
left elbow) and subjected him to a hostile work environment when he was
assigned duties he believed were outside his restrictions in October 2005.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). On September 26, 2007, the AJ issued a
decision without a hearing, finding that the agency did not discriminate
against complainant. In EEOC Appeal No. 0120080381, the Commission found
that the AJ correctly found that complainant had presented no evidence
of disability-based discrimination.
In his request, complainant reiterates his version of the facts, and
asserts that it was unlawful for him to be forced to work in a dusty
environment (contrary to his medical requirements) and he was forced
to miss work. He also disputes certain statements by agency officials
related to his position and assignments and asks the Commission to
"re-open" the case in order for the EEOC to "demonstrate its [c]ommitment
to justice."
We remind complainant that a "request for reconsideration is not a second
appeal to the Commission." Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999), at 9-17.
As indicated above, a request for reconsideration provides a party an
opportunity to demonstrate 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. Complainant has failed to
meet either criterion for reconsideration. The Commission carefully
considered all of the record evidence at the time it rendered the initial
decision in question, and complainant has offered no persuasive reason why
this decision should be reconsidered now. Both the AJ and the previous
decision correctly found that the agency met its obligation to accommodate
complainant and that complainant failed to establish that he was directed
to work outside of his medical restrictions. After reviewing 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. 0120080381 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
____9/17/09_______________
Date
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0520090590
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090590