DON PATTON, APPELLANT, v. MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY, Request No. 05930055 Appeal No. 01922835 Hearing No. 360-91-8004X Agency No. 3-U-1080-90 DENIAL OF REQUEST TO REOPEN INTRODUCTION On October 8, 1992, Don Patton (hereinafter referred to as appellant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Don Patton v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service (Southern Region), EEOC Appeal No. 01922835 (October 2, 1992). EEOC regulations provide that the Commission may, in its discretion, reconsider any previous decision. 29 C.F.R. 1614.407(a). The party requesting reconsideration must submit written argument or evidence that tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1614.407(c). Appellant bases his request on 29 C.F.R. 1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued), 29 C.F.R. 1613.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact) and 29 C.F.R. 1613.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). For the reasons set forth herein, appellant's request is denied. ISSUE PRESENTED The issue presented is whether the previous decision properly affirmed the final agency decision (FAD) which found appellant was not discriminated against on basis of national origin (Irish-German American) when from March 1989 to July 1989 he was not assigned to the 204-B supervisory training program. BACKGROUND Appellant filed an EEO complaint in March 1990 alleging the above issue. Following an investigation, the agency issued a proposed disposition finding no discrimination. Appellant requested a hearing before an EEOC Administrative Judge (AJ). Citing 29 C.F.R. 1613.218(g),1 the AJ did not conduct a hearing on the grounds that there were no issues of material fact to be resolved by a hearing. The AJ issued a recommended decision finding no discrimination, and the agency issued a FAD concurring with the recommended decision. Thereafter, appellant filed an appeal. The previous decision found no discrimination, and appellant then filed the instant request to reopen. The previous decision found that while appellant established a prima facie case of national origin discrimination, the agency articulated legitimate, nondiscriminatory reasons for ceasing to use appellant as 204-B supervisor. Specifically, appellant's Superintendent of Postal Operations (SPO) stated that appellant was ineffective largely because he did not set an appropriate example for other employees whenever he was not being used as a 204-B supervisor because his personal work habits were poor.2 The previous decision found that appellant did not show this reason was pretextual. In his request to reopen, appellant argues that he was not provided an opportunity to discredit the agency's articulated reason for its action. With regard to this matter, the record reflects that in his written request for EEO counseling, appellant stated that the SPO made unfair comments about his work. Appellant alleged in his complaint that he was a good 204-B supervisor and a good carrier, his craft. He did not discuss his performance in his investigative affidavit. Appellant sent the AJ a list of four prospective witnesses. The list was made up of three comparative prospective witnesses who would testify they were treated negatively, and the local union president, who would testify about appellant's performance as a carrier and 204-B supervisor. After receiving the administrative EEO complaint file, the AJ issued a letter to the parties stating that he cancelled the upcoming hearing, as he informed the parties in a telephone conference, and would issue a recommended decision based on the record. The AJ wrote that he determined, pursuant to 29 C.F.R. 1613.218(g), that there were no issues of material fact to be resolved by a hearing.3 The AJ provided the parties an opportunity to respond in writing within 15 calendar days. Appellant did not respond. On appeal, appellant made no specific reference to his performance. Appellant stated on appeal that the investigator did not look into or accept documents, as appellant requested. Appellant did not identify these documents on appeal.4 In his request to reopen, appellant strenuously disputes the agency's contention that he had poor work habits, and makes a number of positive statements concerning his performance and attendance. He adds that he received a performance evaluation rating of "good" by his supervisor in March 1989. According to appellant, when he tried to submit this evaluation to the EEO investigator, the investigator declined, stating appellant would be able to submit it at an EEO hearing. In his request to reopen, appellant contends that other white employees were treated unfairly. ANALYSIS AND FINDINGS In order to reopen the Commission's previous decision, appellant must present evidence or argument that satisfies one of the criteria of 29 C.F.R. 1614.407. After considering appellant's request, we find he has not satisfied the criteria for reopening. EEOC Regulation 29 C.F.R. 1613.218(g) is patterned after the summary judgment procedure described in Federal Rule of Civil Procedure No. 56. The United States Supreme Court has stated that summary judgment is appropriate where the adjudicator determines that no genuine issue of material fact exists, as governed by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is genuine if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988). In order to avoid summary judgment, the non-moving party must produce admissible factual evidence sufficient to demonstrate the existence of a genuine issue of material fact requiring resolution by the fact-finder. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Anderson, supra. at 247-50.The party opposing a motion for summary judgment may not simply rest upon the allegations contained in his pleading, but must set forth specific facts showing that there is a genuine issue still in dispute. Id. at 248.Jagir S. Bhuller v. United States Postal Service, EEOC Request No. 05910551 (August 1, 1991). In the context of an administrative proceeding under Title VII, summary judgment is mandated if, after adequate investigation, appellant fails to establish the essential elements of his case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988).Larry Stabler v. Department of the Navy, EEOC Request No. 05910080 (February 21, 1991). We find appellant has failed to meet the criteria for reopening with respect to the AJ issuing a recommended decision without a hearing. When the AJ decided there was no genuine issue of material fact, appellant had only made a general pleading with regard to his performance, that his performance was good. He did not discuss performance in his investigative affidavit. Appellant indicated that the same arguments presented on appeal were made by him to the AJ over the telephone. Appellant provided no reason for not responding in writing, as he was advised he could, to the letter where the AJ determined there were no issues of material fact. Appellant set forth no specific facts regarding his performance on appeal, and although he indicated on appeal that the investigation was inadequate, he set forth no specific inadequacies. Without some specific facts showing appellant's performance was in dispute, there was no genuine issue of material fact for the AJ to resolve. Appellant's performance was the agency's legitimate, nondiscriminatory reason for ceasing to use appellant as a 204-B supervisor. Appellant's arguments concerning comparative employees, without a showing that his performance warranted continued use as a 204-B supervisor, were not sufficient, as found in the previous decision, to demonstrate pretext. For example, one purported comparative employee was not similarly situated to appellant because he was not a carrier. A request to reopen is not a form of second appeal. In his request to reopen, appellant presents specific arguments controverting the agency's assessment of his performance. Although these arguments may show there was a genuine issue of fact to be resolved at a hearing, they are not new, and could have been presented before the request to reopen. They do not, therefore, meet the criteria for reopening. The previous decision correctly determined that the agency articulated a legitimate, nondiscriminatory reason for ceasing to use appellant as a 204-B supervisor, and that appellant failed to show the reason was pretextual. In his request to reopen, appellant appears to state there are no white 204-B supervisors at the present time. This allegation is not probative since the time frame at issue ended in 1989. The previous decision properly found no discrimination, and appellant's request to reopen is denied. CONCLUSION After a review of appellant's request to reopen, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet any of the criteria of 29 C.F.R. 1613.407(c). It is therefore the decision of the Commission to deny appellant's request. The decision of the Commission in EEOC Appeal No. 01922835 remains the Commission's final decision in this matter. RIGHT TO FILE A CIVIL ACTION (P/A1092) 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 THIRTY (30) CALENDAR DAYS of 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 (Z1092) 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: Frances M. Hart Executive Officer Executive Secretariat July 1, 1993 1. At the time the recommended decision was issued, 29 C.F.R. Part 1613 was in effect. These regulations were superseded on October 1, 1992 by 29 C.F.R. Part 1614. Since 29 C.F.R. Part 1613 was in effect when the recommended decision was issued, we will apply Part 1613 in determining whether the choice to issue a summary judgment recommended decision was proper. 2. Appellant's direct supervisor corroborated this statement. 3. The AJ apparently initiated this action. 4. Appellant indicated on appeal that he made the same arguments presented in his appeal when he was called by the AJ about the cancellation of the hearing.