0520110520
12-07-2011
John R. Bellando, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
John R. Bellando,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520110520
Appeal No. 0120093770
Hearing Nos. 550-2008-00058X, 550-2008-00044X
Agency Nos. 1F-941-0047-06, 4F-940-0077-07
DENIAL
Complainant timely requested reconsideration of the decision in John
R. Bellando v. U.S. Postal Service, EEOC Appeal No. 0120093770 (May
12, 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, we found that the EEOC Administrative Judge
(AJ) properly issued a decision without a hearing. We also found that
Complainant failed to establish that he was denied access to the
Agency’s San Francisco Processing and Distribution Center (P&DC)
because of his race, sex, or prior protected activity. We found that
Complainant was not permitted in the P&DC because he was a prior employee
who had previously been removed from employment for cause. We found that
Complainant failed to establish pretext or show that employees outside
of his protected classes were treated differently.
In his request for reconsideration, Complainant, in pertinent part,
contends that, even though he was previously removed by the Agency, he
should have been given a fair opportunity to prove that he could work
for the Agency without further misconduct. Complainant contends that he
unaware that was not allowed to enter the P&DC. Complainant contends that
he is not a threat as the Agency claims. Complainant contends that another
employee was fired and rehired in violation of Agency policy. Complainant
further contends that the Agency engaged in ex parte communications with
the Commission.
We note that a request for reconsideration is not a second form of
appeal. E.g., Lopez v. Dep’t of Agriculture, EEOC Request No. 0520070736
(Aug. 20, 2007); EEO Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), Chap. 9, §VII.A. (Nov. 9, 1999). 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. There is no dispute
that Complainant was a prior employee who had previously been removed
for cause. We also find no evidence that the Commission engaged in
ex parte communications with the Agency. The decision in EEOC Appeal
No. 0120093770 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
December 7, 2011
Date
2
0520110520
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110520