Dorothy M. Kennerly, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJan 5, 2001
05990961 (E.E.O.C. Jan. 5, 2001)

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.