05a40077
12-16-2003
Thomas W. DeSantis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas W. DeSantis v. United States Postal Service
05A40077
12-16-03
.
Thomas W. DeSantis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A40077
Appeal No. 01A34246
Agency No. 4E-800-0047-02
DECISION ON REQUEST TO RECONSIDER
On October 14, 2003, Thomas W. DeSantis (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Thomas W. DeSantis v. John E. Potter, Postmaster General,
United States Postal Service, EEOC Appeal No. 01A34246 (September
30, 2003). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous 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).
In EEOC Appeal No. 01A34246, the Commission found that complainant's
claims of a hostile work environment based on age (DOB 9-13-1950) and
reprisal (for prior EEOC activity) discrimination with regard to overtime
and disciplinary actions (letter of warning and suspension) were not
supported by the record. The record shows that the agency provided
legitimate, nondiscriminatory reasons for its action, that is, because
overtime is generally dependent on whether one's work assignment required
it and complainant's did not; and because the disciplinary actions were
based on complainant's misconduct and inappropriate language. Complainant
did not demonstrate that the agency's explanations were not true or were
taken because of considerations based on age or reprisal animus.
In his request for reconsideration, complainant expressed concern that his
entire file was not reviewed and his suspicion that the agency tampered
with the file sent to the Commission. All appeals from final actions of
an agency are reviewed de novo, that is, a full review of the case file,
including the Report of Investigation and statements of the parties
submitted in regard to the appeal. 29 C.F.R. � 1614.405(a).
In order to merit the reconsideration of a prior Commission 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).
Complainant's request does not demonstrate that the previous decision
involved a clearly erroneous interpretation of material fact or law
or that the decision will have a substantial impact on the policies,
practices or operation of 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. 01A34246 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
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
_____12-16-03_____________
Date