0520120428
10-17-2012
Paul Andrisano, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Paul Andrisano,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Request No. 0520120428
Appeal No. 0120120982
Agency No. 1B072007811
DENIAL
Complainant timely requested reconsideration of the decision in Paul Andrisano v. U.S. Postal Service, EEOC Appeal No. 0120120982 (April 30, 2012). 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 the underlying case, Complainant alleged he was subjected to harassment on the bases of race (Caucasian), age (unknown), and national origin (unknown) when on September 13, 2011, the Manager, Distribution Operations, summoned him by saying, "Hey you, come here since you are a cleaner" to clean up a white powder spill. The Agency dismissed the claim for failure to state a claim. Complainant appealed the decision to the Commission. In Andrisano v. U.S. Postal Service, EEOC Appeal No. 0120120982 (April 30, 2012), the Commission affirmed the Agency's dismissal. The Commission found that the complaint failed to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Complainant requests that the Commission reconsider its appellate decision.
In his request for reconsideration, Complainant argues that the facts in the decision are not correct. Specifically, Complainant argues that he alleged that he did not clean up the spill because he was not required to do so until it was determined that it was safe to do so. Complainant contends that other employees were told it was not safe to enter the room, but the Agency stated that it was safe for him to clean up the spill. Complainant also argues that the Agency failed to follow proper protocol.
Taking Complainant's arguments into consideration, we find that Complainant has failed to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Even though Complainant argues that the facts are mistaken in the underlying appeal, Complainant has failed to show that this is the case. We also note that even assuming that it was appropriate for Complainant to not clean up the spill because he was not required to do so due to safety concerns, we still find no error with respect to the previous decision's determination that his allegation did not state a claim of harassment. Accordingly, we decline to reconsider the underlying decision in this case.
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. 0120120982 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 (P0610)
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 (Z0610)
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
___10/17/12_______________
Date
2
0520120428
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120428