Peter L. Frankovitch, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast area), Agency.

Equal Employment Opportunity CommissionAug 7, 2009
0520090125 (E.E.O.C. Aug. 7, 2009)

0520090125

08-07-2009

Peter L. Frankovitch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast area), Agency.


Peter L. Frankovitch,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast area),

Agency.

Request No. 0520090125

Appeal No. 0120055471

Agency No. 1H-324-0038-03

DENIAL

Complainant timely requested reconsideration of the decision in Peter

L. Frankovitch v. United States Postal Service, EEOC Appeal No. 0120055471

(December 12, 2007). 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 formal complaint, complainant alleged employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. Complainant specifically alleged

that the agency discriminated against him on the basis of disability (back

and leg injury) when, from May 22 through May 27, 2003 his supervisor

tried to force him off the clock at 8:00 am because of his light duty

status and made a derogatory remark about his being a light duty employee.

In the appellate decision, EEOC Appeal No. 0120055471, the Commission

affirmed the agency's final decision finding no discrimination because

the preponderance of the evidence of record did not establish that

discrimination occurred.

In his request, complainant submits a packet of what he describes as

"untimely" documents. He describes the submission as follows:

The packet of evidence I am submitting illustrates that the W.P.B. Post

Office had access to a continuous flow of medical documents/ letters,

grievances, a union letter, and official Post Office documents proving

the Post office had no basis in forcing me to fill out requests for

light duty. I believe this was an attempt to illegally and without cause

reclassify my work status.

Brief at 2.

Complainant additionally asserts: "[t]he specific incident on which this

complaint is based was the culminating act in an eight month campaign

of harassment and discrimination."1 He also avers that the major

dispute in this case is whether he was a "light" duty, or "limited"

duty employee, and reiterates his contention that the agency officials

have submitted false testimony concerning his limitations and medical

documentation, which the Commission has accepted despite record evidence

to the contrary.

Initially, we address complainant's reiteration of arguments previously

made (e.g. that he is a limited duty employee, and not a light duty

employee, and that management lied about this). First, 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 (rev. Nov. 9, 1999), at 9-17. We note additionally

that the Commission did not have the benefit of an AJ's findings after a

hearing, as complainant chose a FAD instead, and therefore, we evaluated

the facts based on the weight of the evidence presented to us, and found

that complainant did not prove, by a preponderance of the evidence,

that the agency's actions violated the Rehabilitation Act. Finally, we

note that at this stage of processing we cannot consider new evidence,

not already in the record.

This Commission carefully considered all of the record evidence at the

time it rendered the initial decision in question, and complainant has

offered no persuasive reason why this decision should be reconsidered now.

Therefore, 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. 0120055471 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

______8/7/09____________

Date

1 We note that in Frankovitch v. United States Postal Service, EEOC

Appeal No. 01A40472 (March 10, 2004), the Commission found that several

additional incidents which complainant raised in his complaint (occurring

between November 2002 and May 19, 2003) had been properly dismissed by the

agency, while the incidents addressed in EEOC Appeal No. 0120055471 ought

to have been accepted. Accordingly, the Commission remanded the case to

the agency for the further processing as to the May 2003 incidents only.

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0520090125

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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