0520070533
06-26-2007
Johnny Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Johnny Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Request No. 0520070533
Appeal No. 0120055275
Agency No. 1G701012202
DENIAL
Complainant timely requested reconsideration of the decision in Johnny
Green v. United States Postal Service, EEOC Appeal No. 0120055275 (April
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).
The record shows that the Administrative Judge (AJ) issued a decision
on November 6, 2003, finding that the agency failed to provide
a reasonable accommodation to complainant in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and, on November 17, 2003, awarded him relief,
including non-pecuniary compensatory damages. The agency implemented the
AJ's decision and issued a Final Order on January 16, 2004. A review of
the AJ's decision indicates that it was silent with regard to attorney's
fees. On December 16, 2003, complainant filed a petition for attorney's
fees and costs with the AJ and with the agency. By letter dated January
16, 2004, the agency informed the attorney that it would consider the
request, if she resubmitted the petition in accordance with Chapter 11
of the Commission's EEO Management Directive-110 (November 9, 1999)
(MD-110). Complainant's attorney, however, did not do so; instead,
she filed her petition with the AJ. On July 16, 2004, the AJ denied
the request to determine attorney's fees and directed the attorney to
file an appeal with the Commission's Office of Federal Operations (OFO).
The attorney did not file an appeal with OFO until May 2005.
The prior decision found that while Title VII and the Rehabilitation Act
authorize awards of reasonable attorney's fees and costs to a prevailing
complainant, complainant's attorney did not act with due diligence
in pursuit of her claim. The decision noted that, in January 2004,
the agency requested that complainant's counsel resubmit her petition
in accordance with MD-110, and, in July 2004, the AJ, in denying her
request, referred her to OFO. Complainant's counsel did not resubmit her
petition with the agency, and waited until May 27, 2005, before filing an
appeal with the Commission, almost ten months after the AJ's July 2004
ruling and almost 15 months after the agency's Final Order and letter.
The Commission noted that on appeal, counsel did not offer an adequate
justification for extending the applicable time limit for filing the
appeal. See 29 C.F.R. � 1614.403(c). The Commission found that counsel
failed to act with due diligence in pursuit of her claim for attorney's
fees and that the doctrine of laches was properly applied herein.
Accordingly, the appeal was dismissed.
In this request for reconsideration, complainant's counsel requested a
copy of the appeals file including correspondence between the Commission
and herself between December 6, 2003 and May 25, 2005. Counsel alleges
that due to Hurricane Katrina, all of her files related to the instant
case were destroyed and thus she seeks a copy of the appeals file in
order to prepare her brief in support of the request for reconsideration.
While the Commission is sympathetic to counsel's loss of the appeal
file in the instant case, we nevertheless find that she has submitted no
argument in the request for reconsideration which establishes that the
prior 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. The reason the
Commission dismissed complainant's prior appeal dealt with counsel's
failing to file the appeal with the Commission until May of 2005.
As noted by the previous decision, complainant, through his attorney,
did not provide an adequate justification to explain why an appeal was
not filed with the Commission until May 2005.1 Regarding complainant's
request that the Commission provide a copy of the appeal file, we again
note that, with respect to this request for reconsideration, there is
no documentation contained in the appeal file that would establish that
the previous decision erred in finding that complainant did not provide
an adequate justification for the untimely appeal; therefore, we do not
find that reconsideration is warranted here.
As such, 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. 0120055275 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be
filed with the office of federal operations (OFO) within thirty (30)
calendar days of receipt of this decision or within twenty (20) calendar
days of receipt of another party's timely request for reconsideration.
See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
____06/26/07______________
Date
1 We note that Hurricane Katrina occurred in August of 2005.
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0520070533
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070533