John P. McHale, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980455 (E.E.O.C. Nov. 4, 1999)

05980455

11-04-1999

John P. McHale, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John P. McHale v. United States Postal Service

05980455

November 4, 1999

John P. McHale, )

Appellant, )

) Request No. 05980455

v. ) Appeal No. 01973952

) Agency No. 4-H-327-0071-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On April 4, 1998, John P. McHale (appellant) timely initiated a request

to the Equal Employment Opportunity Commission (the Commission) to

reconsider the decision in McHale v. United States Postal Service, EEOC

Appeal No. 01973952 (February 5, 1998). EEOC regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation, or material fact,

or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

or the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3).

Appellant filed an EEO complaint in which appellant alleged that the

agency discriminated against him on the bases of sex (male) and reprisal

(no prior EEO activity) when on or about November 4, 1996, he was

"excessed" from the window section. In the Final Agency Decision (FAD),

the agency dismissed the basis of reprisal for prior EEO activity when

the agency's records showed that appellant had no prior EEO activity.

Therefore, it dismissed the basis of reprisal for failure to state a

claim pursuant to 29 C.F.R. �1614.107(a) and accepted for investigation

appellant's allegation of discrimination on the basis of sex (male).

The previous decision summarily affirmed the agency's decision to dismiss

a portion of his complaint.

In his Request to Reconsider (RTR), appellant argued that the Commission

erroneously misinterpreted the facts of his case in its affirmation of

the agency's FAD. He stated that the merits of his case would show that

he was discriminated against on the basis of sex.

After a careful review of the record, the Commission finds that appellant

fails to meet any of criteria of 29 C.F.R. �1614.407(c). Nowhere in

the record are there indications that appellant engaged in any EEO

counseling session, filed any formal EEO complaint, or participated in any

investigation, hearing, or other EEO activity, either on his own behalf

or as a representative or witness for another complainant, other than the

matter now before us. Since appellant has not identified any EEO activity

in which he engaged prior to this complaint, his claim of discrimination

on the basis of reprisal does not state a claim. The previous decision

correctly affirmed the agency's dismissal of appellant's allegation on

the basis of reprisal for failure to state a claim.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request does not meet the criteria of 29 C.F.R. �1614.407(c), and it is

the decision of the Commission to deny appellant's request. The decision

in Appeal No. 01973952 remains the Commission's final decision in

this matter. There is no further right of administrative appeal from

a decision of the Commission on a request for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Nov. 4, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat