0520051144
10-18-2007
Phillip F. Socha, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Phillip F. Socha,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520051144
Appeal No. 01A50817
Agency No. 1J605002602
DENIAL
The agency timely requested reconsideration of the decision in Phillip
F. Socha v. United States Postal Service, EEOC Appeal No. 01A50817
(July 6, 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).
Complainant filed a formal complaint alleging the agency discriminated
against him on the bases of race (Caucasian) and reprisal (prior EEO)
activity) when: (1) on April 9, 2002, management held a pre-disciplinary
hearing and issued him a Letter of Warning; and (2) on September 26,
2002, management delayed providing him with medical attention for an
on-the-job-injury in order to issue him a Letter of Warning.
After complainant requested a hearing, an EEOC Administrative Judge
(AJ) issued a decision finding no discrimination without a hearing.
Specifically, the AJ found complainant's Letter of Warning was reduced
to a Job Discussion, and that the remaining claim did not render him
aggrieved. The agency implemented the decision by issuing a final
action.
Complainant appealed. The prior decision found complainant established a
genuine dispute as to whether the Letter of Warning was in fact downgraded
to a Job Discussion. Furthermore, the decision found insufficient
evidence of any reason to issue complainant a Letter of Warning prior
to taking him to the hospital for medical care.
In the agency's request, it argues that the prior decision erred in
finding a dispute as to whether the Letter of Warning was reduced to
a job discussion since complainant averred that it was reduced in his
affidavit.
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 record does contain a dispute of material fact
as to whether complainant was improperly issued the Letter of Warning,
and whether in fact it was reduced to a job discussion. In that regard,
complainant submitted sworn statements from individuals who were told
the Letter of Warning was not reduced following a grievance because
complainant filed a formal EEO complaint. (See Complainant's Brief
on Appeal and Exhibits). The decision in EEOC Appeal No. 01A50817
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
The agency shall comply with the Order as set forth below.
ORDER
The agency is ordered to take the following remedial action:
The agency shall submit to the Hearings Unit of the Chicago District
Office for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy
of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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
10/18/07
Date
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0520051144
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520051144