0520110700
02-16-2012
Dave Hunter, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Dave Hunter, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520110700
Appeal No. 0120081971
Hearing No. 461-2006-00072X
Agency No. 4G-700-0080-06
DENIAL
Complainant timely requested reconsideration of the decision in
Dave Hunter, Jr. v. U.S. Postal Serv., EEOC Appeal No. 0120081971
(Aug. 18, 2011). 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 our previous decision, the Commission affirmed an EEOC Administrative
Judge’s (AJ) issuance of a decision without a hearing in favor of
the Agency. Specifically, the AJ determined that Complainant was not
subjected to disability discrimination when the Agency disallowed
Complainant’s bid to a T-6 Letter Carrier position on account of
Complainant’s failure to provide requested medical documentation.
In his request for reconsideration, Complainant contends that the
Agency’s actions violated the Family and Medical Leave Act (FMLA).
Complainant maintains that when an employee uses leave because of a
condition supported by FMLA certification, the employee is not required to
provide further documentation. Complainant further contends that he was
unable to provide requested documentation to the Agency because he was
unable to schedule an appointment within the time limit for submitting
the documentation.
Upon review, we note that, to the extent that Complainant contends
that the Agency violated the FMLA, the Department of Labor enforces the
FMLA, and the Commission has no enforcement authority under the FMLA.
EEOC Fact Sheet on The Family and Medical Leave Act, the Americans
with Disabilities Act, and Title VII of the Civil Rights Act of 1964,
Question 2 (July 2, 2000).1 Additionally, the Agency requested updated
medical documentation from Complainant in April 2006 after he sought
to return to work after applying for disability retirement and going
on non-work status in 2004. Complainant acknowledged that he could not
perform the essential functions of his bid position. We find that our
previous decision properly found that Complainant failed to engage in
the interactive process when he did not submit requested updated medical
documentation, and therefore, Complainant failed to prove that the Agency
violated the Rehabilitation Act.
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 (EEO MD-110) (rev. Nov. 9,
1999), at 9-17; e.g., Lopez v. Dep’t of Agriculture, EEOC Request
No. 0520070736 (Aug. 20, 2007). A reconsideration request is an
opportunity to demonstrate that the previous decision involved a
clearly erroneous interpretation of material fact or law; or (2) will
have a substantial impact on the policies, practices, or operations of
the Agency. Complainant has not done so here.
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. 0120081971 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
February 16, 2012
Date
1 The Fact Sheet is accessible at
http://www.eeoc.gov/policy/docs/fmlaada.html .
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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