05990961
01-05-2001
Dorothy M. Kennerly, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.
Dorothy M. Kennerly v. United States Postal Service
05990961
January 5, 2001
.
Dorothy M. Kennerly,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 05990961
Appeal No. 01973660
Agency No. 4H-330-109795
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Dorothy
M. Kennerly v. United States Postal Service, EEOC Appeal No. 01973660
(June 23, 1999).<1> EEOC Regulations provide that the Commission may,
in its discretion, 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).
Complainant alleges that she was discriminated on the bases of race
(Black) and age (46) when she was not selected for the position of
Contract Technician. The appellate decision affirmed the Final Agency
Decision which found that complainant failed to sustain her burden of
proving by a preponderance of the evidence that she had been discriminated
against by the agency. Specifically, the agency found that complainant
was not more qualified than the selectee and the record was devoid of
discriminatory animus.
Complainant's sole argument in her request for reconsideration is
that the lower decision failed to explain its reasoning for affirming
the agency's decision. Such argument is insufficient in showing how
the appellate decision involved a clearly erroneous interpretation of
material fact or law. The appellate decision affirmed the Final Agency
Decision which provided a full and complete analysis in support of the
finding of no discrimination. Specifically, the agency found that while
complainant was employed with the agency for a longer period of time
than the selectee and held a greater educational background, the selectee
was more qualified for the position at issue. The record indicates that
complainant and the selectee were evaluated by three member review panel
on a point system utilizing the proficiency requirements of the position.
Based upon that system, the selectee received 77 points and complainant
received 69 points. There was unanimous agreement between the members
of the review panel that the selectee was the best qualified for the
position. Specifically, the record shows that the review panel members
found that complainant did not demonstrate her capabilities or knowledge
of purchasing. In addition, the panel found the selectee best qualified
because of her prior work history with a documented legal background
in contracting. Moreover, the record was devoid of evidence which would
indicate that the review panel members were motivated by discriminatory
animus. The appellate decision agreed with the Final Agency Decision and
its analysis. Failure of the appellate decision to reiterate the FAD's
analysis does not, by itself, support a basis for reconsideration.
After a review of the complainant's request for reconsideration, 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. 01973660 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this 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
January 5, 2001
__________________
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.