05a51149
10-14-2005
Larry McKoy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Larry McKoy v. United States Postal Service
05A51149
October 14, 2005
.
Larry McKoy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Request No. 05A51149
Appeal No. 01A52248
Agency No. 4C-280-0081-04 & 4C-280-0134-04
DENIAL
Larry McKoy (complainant) timely requested reconsideration of the decision
in Larry McKoy v. United States Postal Service, EEOC Appeal No. 01A52248
(July 15, 2005). 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)
(2004).
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. In our previous decision, we found that there had
been no breach of the settlement agreement as alleged by complainant.
When we rendered our decision, we reviewed the matter de novo, carefully
considering all of the record evidence.
In his request, complainant asks us to again review the merits of his
settlement breach claim. He maintains that we erroneously interpreted the
settlement agreement and failed to take note of the �average number of
all city carriers� in calculating street observations as the agreement
provides.<1> He also insists, as he did on appeal, that there was
no national moratorium on street observations. Thus, in essence,
complainant's request is actually a request for a second appeal.
However, 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, at 9-17 (rev. Nov. 9,
1999). Having reviewed our prior decision and the record based on
the standard articulated above, we conclude that our interpretation of
material fact and law is not clearly in error, nor do we find that the
previous decision overlooked any material evidence. We do not find
that we misinterpreted the settlement agreement; we have given it
its plain meaning. Thus, we continue to stand behind that decision
and find that the arguments complainant presents in his request fail
to give us reason to reconsider the decision. As such, the decision
in EEOC Appeal No. 01A52248 remains the Commission's final 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 (P0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 14, 2005
__________________
Date
1 In our prior decision we stated:
[E]ven though the agency conducted street observations of only three out
of 27 letter carriers, this did not violate the settlement agreement.
The settlement agreement stipulates that if the average number of
observations is between .1 and .9, the average would be rounded up to the
next whole number. Using this calculation, complainant's one observation
did not exceed his coworkers' averages. Furthermore complainant felt
that all employees should have undergone street observations, the
settlement agreement contains no language to this effect. Complainant
may have believed that all carriers were going to be observed; however,
pursuant to the plain meaning rule explained above, any intentions that
are not expressed in the language of the settlement agreement will not
be considered by the Commission.� McKoy v. United States Postal Serv.,
EEOC Appeal No. 01A52248 (July 15, 2005)