Annie L. Herling, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 28, 2001
05a00615 (E.E.O.C. Feb. 28, 2001)

05a00615

02-28-2001

Annie L. Herling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Annie L. Herling v. United States Postal Service

05A00615

02-28-01

.

Annie L. Herling,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A00615

Appeal No. 01986405

Agency No. 4J-604-0071-97

DECISION ON REQUEST TO RECONSIDER

On April 12, 2000, Annie L. Herling (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Annie L. Herling v. William J. Henderson,

Postmaster General, United States Postal Service, EEOC Appeal No. 01986405

(March 15, 2000). 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).<1> For the reasons set forth

below, the complainant's request is denied.

The issue presented is whether complainant's request meets the criteria

for reconsideration.

Complainant filed her formal complaint on March 27, 1997, alleging

discrimination on the bases of sex and national origin (Hispanic) when she

was not selected for the position of Supervisor, Distribution Operations,

in January 1997. After an investigation,<2> complainant requested a

final decision, and the agency found no discrimination. According to

the record before us, the agency posted a vacancy announcement for the

position at issue but canceled the posting and filled the position

by lateral reassignment. Complainant and all other applicants were

notified of the agency's action. The previous decision affirmed the

agency's decision, finding that the record did not establish that the

agency discriminated against complainant.

Complainant has filed a request for reconsideration in which she states

her disagreement with the previous decision.<3> The agency filed

comments arguing that complainant's request does not meet the criteria

for reconsideration.

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.

A request for review is not a second opportunity for appeal, and the

Commission's scope of review on a request for reconsideration is narrow.

Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850

(September 7, 1990).

We find that complainant's request does not meet the criteria for

reconsideration of the previous decision, in that, complainant did

not provide any argument beyond her mere statement of disagreement

with the previous decision or show legal error in the prior decision.

Our regulations require that complainant demonstrate legal error of a

material fact or law or that the decision substantially impacts on the

policies, practices or operation of the agency. 29 C.F.R. � 1614.405(b).

Further, our review of the entire record does not indicate that the

previous decision was in error.<4>

CONCLUSION

After a review of the complainant's request for reconsideration,

the agency's reply thereto, the previous decision, and the entire

record, the Commission finds that the complainant's request fails

to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is

the decision of the Commission to deny the complainant's request.

The decision of the Commission in EEOC Appeal No. 01986405 (March 15,

2000) remains the Commission's final decision. There is no further

right of administrative appeal from a 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

____02-28-01______________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2We note that complainant failed to provide an investigatory affidavit

or other information or documentation to the investigator.

3Complainant also references exhibits to her request but none were

attached thereto.

4According to Commission records, complainant has filed many complainants

of discrimination and appeals to the Commission. At present,

pending before the Commission are seven appeals, involving at least

ten complaints and six requests for reconsideration. In addition, the

Commission has closed 60 matters filed by complainant. The Commission

reminds complainant that it has inherent power to protect its process

and that the Commission's regulations provide for sanctions for misuse

of the EEO process. 29 C.F.R. � 1614.107(a)(9). See Buren v. USPS,

EEOC Request No. 05850297 (November 18, 1985); Hooks v. USPS, EEOC

Appeal No. 01953852 (November 28, 1995); Kessinger v. USPS, EEOC Request

No. 05970408 (May 30,

1997).