0520120452
11-09-2012
Paul Juliano, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Paul Juliano,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520120452
Appeal No. 0120121187
Agency No. 4C190010211
DENIAL
Complainant timely requested reconsideration of the decision in Paul Juliano v. U.S. Postal Service, EEOC Appeal No. 0120121187 (May 22, 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 complaint, Complainant alleged he was discriminated against based on his race, sex, and color when (1) on September 22, 2011, he realized a co-worker's seniority date included time spent as an EAS employee, but he was not credited with time spent as a PTF employee; and (2) on October 26, 2011, management failed to send home a co-worker for violating the Zero Tolerance Policy. The Agency dismissed claim 1 for untimely EEO counselor contact, and claim 2 for failure to state a claim. Complainant appealed the Agency's dismissal to the Commission.
In Juliano v. U.S. Postal Service, EEOC Appeal No. 0120121187 (May 22, 2012), the Commission affirmed the Agency's dismissal of the two claims. Specifically, with regard to claim 1, the Commission found that Complainant failed to timely contact an EEO counselor. The Commission noted that "We are not convinced that the discovery of an alleged comparator seven years after the alleged discriminatory event is sufficient to toll the time limits." With regard to claim 2, the Commission found that Complainant failed to state a claim for which a remedy could be provided under the law.
In his request for reconsideration, Complainant argues that the Commission erred in not addressing a third claim; with regard to claim 1, the dated seniority list that was submitted with the appeal documenting that the date of personnel action was within 45 days of his counselor contact; claim 1 was not a collateral attack on another proceeding; regarding claim 2, he did suffer a term, condition or privilege of employment; and his transfer was not voluntary.
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. We find the underlying decision appropriately determined that with regard to claim 1, the discovery of a comparator seven years after the alleged discriminatory event is not sufficient to toll the time limits in this case. With regard to claim 2, the Commission appropriately determined that Complainant failed to state a claim for which a remedy could be provided under the law. Complainant appears to assert that claim 2 involves some loss of compensation or privilege, but Complainant has failed to show that this is the case. Finally, we find that there is nothing in the record to show that Complainant appealed the dismissal of claim 3 to the Commission.
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. 0120121187 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
___11/9/12_______________
Date
2
0520120452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120452