0520090306
06-05-2009
Kenneth J. Franco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090306
Appeal No. 0120070129
Hearing No. 520200600231X
Agency No. 4B018002606
DENIAL
Complainant timely requested reconsideration of the decision in Kenneth
J. Franco v. United States Postal Service, EEOC Appeal No. 0120070129
(February 25, 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 underlying complaint, complainant alleged that the agency
discriminated against him on the basis of his sex in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., when, during the period November 1, 2005 through December 23, 2005,
management assigned fewer work hours to complainant than to a female
co-worker. At the conclusion of the investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ assigned
to the case found that, after viewing the evidence in a light most
favorable to complainant, a decision without a hearing was appropriate
as there were no genuine issues of material fact in dispute. The AJ
concluded that complainant failed to establish that he was subjected to
discrimination as alleged. The agency's final order adopted the AJ's
finding of no discrimination. On appeal, the Commission affirmed the
agency's final order. Specifically, we found that assuming, arguendo,
complainant established a prima facie case of sex discrimination, the
agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions that complainant failed to show were pretextual.
In his request for reconsideration, complainant reiterates his contentions
on appeal. 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 decision in EEOC Appeal No. 0120070129 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
June 5, 2009
Date
2
0520090306
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520090306