0520140433
01-15-2015
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Request No. 0520140433
Appeal No. 0120083737
Hearing No. 532-2007-00165X
Agency No. 4B-14010014-07
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120083737 (May 20, 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 issued a decision without a hearing. Complainant, a City Carrier, filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), disability, and reprisal for prior protected EEO activity when it issued her a December 1, 2006, Notice of Separation effective January 13, 2007. In our previous decision, we noted that Complainant sustained on-the-job injuries in October 1999 and August 2000 and had been on a medical leave of absence since December 2000. We also noted that the Agency notified Complainant in August 2006 of its intent to separate her from employment and that Complainant did not respond to the Agency's notification. We found that Complainant's allegations that the Agency failed to provide rehabilitative or retirement counseling constituted a collateral attack on the Office of Worker's Compensation Programs process and did not state a viable EEO claim. We further found that the record supported the AJ's conclusion that Complainant was not a qualified individual with a disability because she could not perform the essential functions of her Carrier position with or without reasonable accommodation. With respect to Complainant's suggestion, raised for the first time on appeal, that the Agency could have reassigned her to perform duties under the "We Deliver" Program, we found that Complainant produced no evidence that there existed a vacant, funded position to which she could have been reassigned around the time of her separation. Accordingly, we concluded that Complainant did not establish that her separation from the Carrier position and from the Agency overall was discriminatory on any of the bases alleged.
In her request for reconsideration, Complainant argues that she is a qualified individual with a disability. She states that, in August 2008, the Agency employed her in a "make work" program. Complainant argues that the determination of whether she is a qualified individual with a disability should be based on her ability to perform the "make work" position rather than the Carrier position.1
In response to Complainant's request, the Agency argues that the request does not meet the criteria for reconsideration. The Agency contends that the AJ and our previous decision properly concluded that Complainant was not a qualified individual with a disability. The Agency states that it placed Complainant on limited duty from October 1999 until she sustained additional injuries in August 2000 and that Complainant was in a Leave without Pay (LWOP) status from December 2000. It argues that it was not required to create a position for Complainant or to convert a temporary limited-duty position into a permanent position. It also argues that Complainant has presented no evidence that she could perform the essential functions of the unspecified position to which she refers in her request.
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 has offered no evidence that, at the time of her separation from the Agency, she could have performed the essential functions of the limited-duty, "make work" position with or without reasonable accommodation. In addition, as the previous decision noted, Complainant produced no evidence that there existed a vacant, funded position to which she could have been reassigned. We find, therefore, that Complainant has not shown that the previous decision was clearly erroneous or will have a substantial impact on the Agency.
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. 0120083737 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
January 15, 2015
Date
1 Complainant subsequently submitted a response to the Agency's opposition to her request for reconsideration. The regulation set forth at 29 C.F.R. � 1614.405(c) provides, in relevant part, that a party may request reconsideration within 30 days of receipt of a decision by the Commission. There is no provision for the submission of additional statements or briefs after the initial filing. Accordingly, the Commission declines to consider Complainant's additional statements, as they are untimely pursuant to 29 C.F.R. � 1614.405(c).
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0120140433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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