0520140425
12-05-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520140425
Appeal No. 0120132340
Hearing No. 490-2012-00093X
Agency No. 1C372000411
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132340 (May 28, 2014). 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(c).
Our previous decision affirmed the Agency's final order adopting the decision of the EEOC Administrative Judge (AJ), who granted the Agency's motion for summary judgment. In our decision, we agreed with the AJ that there were no material facts in dispute. We also agreed that Complainant did not establish that the Agency discriminated against her on the bases of race and reprisal for prior EEO activity when it denied her request for a leave of absence, suspended her, placed her in Absent without Leave Status, gave her an Investigative Interview, and removed her from employment. We noted that, in March 2011, the Agency rescinded a December 2010 Notice of Removal for poor attendance and directed Complainant to return to work. We further noted that Complainant, who had exhausted her paid leave and was not eligible for leave under the Family and Medical Leave Act (FMLA), did not return to work. Instead, she submitted leave requests and asked for a leave of absence. We concluded that Complainant did not meet the attendance requirements of her job, that her continued absence was the basis for the discipline she received, and that the Agency denied her request for a leave of absence because it would have resulted in overtime costs and administrative inconvenience. We found that there was no evidence that Complainant's race or prior EEO activity motivated the Agency's actions.
In her request for reconsideration, Complainant, through her attorney, argues that the previous decision involved an erroneous interpretation of facts and law. Complainant asserts that the facts in this case are "inextricably bound" to the facts of a different case that Complainant filed. See EEOC Appeal No. 0120123351 (June 4, 2014) (Complainant did not establish that the Agency discriminated against her on the bases of disability and reprisal when it issued her a September 2010 suspension and a December 2010 Notice of Removal), req. for reconsid. pending, EEOC Request No. 0520140436. She also asserts that she "would have qualified for FMLA" leave if the Agency had reinstated her work hours after it rescinded the Notice of Removal. Complainant argues that, in our previous decision, we should have considered her eligibility for FMLA leave.
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; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Complainant's assertion that she "would have" been eligible for FMLA leave if the Agency had reinstated her work hours does not establish that the previous decision erroneously stated that she was not eligible for FMLA leave. Moreover, the assertion does not establish that the previous decision erroneously found that she did not show that her race or prior EEO activity motivated the Agency's actions at issue in this complaint.
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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120132340 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 5, 2014
Date
2
0520140425
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140425