0520070023
11-13-2006
Lonnie L. Maxie, Complainant, v. John E. Potter, Postmaster General, United State Postal Service, Agency.
Lonnie L. Maxie v. United State Postal Service
0520070023
11-13-06
.
Lonnie L. Maxie,
Complainant,
v.
John E. Potter,
Postmaster General,
United State Postal Service,
Agency.
Request No. 0520070023<1>
Appeal No. 0120053170
Agency No. 1G-756-0054-03
Hearing No. 310-2004-00525x
DECISION ON REQUEST TO RECONSIDER
On October 5, 2006, Lonnie L. Maxie (complainant) requested
reconsideration of the decision in Lonnie L. Maxie v. John E. Potter,
Postmaster General, United State Postal Service, EEOC Appeal
No. 0120053170 (August 31, 2006). EEOC regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the party demonstrates that: (1)
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b).
Our previous decision affirmed the summary judgment decision of the
Administrative Judge (AJ) and the agency that it did not discriminate
against complainant when he was removed.<2> In his complaint, dated
October 14, 2003, complainant claimed that the agency discriminated
against him based on race (black), sex, disability (gout-arthritis), and
in reprisal for prior EEO activity. The AJ found that complainant was
not an individual with a disability, that he did not establish a prima
facie case based on race or sex, that the agency articulated legitimate,
nondiscriminatory reasons for its actions, and that complainant did not
demonstrate pretext. The previous decision assumed that complainant was
an individual with a disability and concurred with the AJ's finding of
no discrimination.
In his request, complainant contended that he was an individual with
a disability, that he had gout-arthritis which affected his feet,
and that his condition prevented his on-time arrival at work since
it was difficult to 'get moving' in the morning. He also stated that
his supervisor during most of 2003, excused his absences and that the
question of 'who was his supervisor' for purposes of determining if
his attendance was unsatisfactory, was a genuine issue of material fact
defeating the AJ's determination to issue a summary judgment decision.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
For purposes of analysis, we will assume, arguendo, that complainant
is an individual with a disability and entitled to coverage under the
Rehabilitation Act. The agency explained that complainant was terminated
in August 2003, for unsatisfactory attendance, having accrued 38 instances
of unscheduled leave. The burden of persuasion returns to complainant
to demonstrate pretext, that is, that the agency's reasons were not
its true reasons and, instead, it acted based on discriminatory animus.
Complainant has not made this showing: there is no probative evidence
that his supervisor excused his absences, i.e., no statement from the
supervisor or written documents excusing his unscheduled absences.
We also concur with the previous decision's determination that there
was no evidence in the record that complainant requested a reasonable
accommodation for his arthritis which was denied by the agency.
After a review of the complainant's request for reconsideration, 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. 0120053170 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
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
____11-13-06______________
Date
1Due to a new data system, your case has been redesignated with the
above referenced appeal and request numbers.
2In November 2001, the agency removed complainant for unsatisfactory
attendance; however, through the collective bargaining procedure, he
was put back to work in January 2003, with the understanding that four
or more unscheduled absences in the following 12 months would be grounds
for his immediate removal. On August 13, 2003, following 38 unscheduled
absences, including lateness, the agency terminated him.