0520110596
01-12-2012
Iris J. Paul, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Iris J. Paul,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520110596
Appeal No. 0120112106
Agency No. 1C-152-0011-101
DENIAL
The Agency timely requested reconsideration of the decision in Iris
J. Paul v. U.S. Postal Service, EEOC Appeal No. 0120112106 (July
13, 2011). 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(b).
We note that in a final decision dated August 30, 2010, the
Agency dismissed Complainant’s complaint for failure to state a
claim. Complainant appealed. In Iris J. Paul v. United States Postal
Service, EEOC Appeal No. 0120110061 (January 26, 2011), the Commission
reversed the Agency’s final decision and remanded Complainant's
complaint for further processing in accordance with 29 C.F.R. §
1614.108. The Commission noted that the Agency had improperly dismissed
the complaint as a collateral attack on the grievance process, finding
that Complainant was alleging that her removal was discriminatory.
On remand, the Agency issued a second final decision dated February 8,
2011, again dismissing the complaint, this time on the ground that
Complainant’s EEO Counselor contact was untimely. The Agency found
that Complainant’s EEO counselor contact occurred on June 29, 2010,
which was beyond the 45-day limitation period. Complainant again appealed.
In Iris J. Paul v. United States Postal Service, EOC Appeal No. 0120112106
(July 13, 2011), we found that Complainant’s initial contact with the
EE Counselor was timely, because Complainant did not reasonably suspect
discrimination until she learned, on June 21, 2010, that other employees
with unsatisfactory attendance were granted last-chance agreements
rather than being removed. The Agency thereafter filed the instant
request for reconsideration.
In its request, the Agency takes issue with the manner in which the
Commission has defined the issue of Complainant’s complaint, i.e.,
as pertaining to Complainant’s removal or as pertaining to the Agency
not offering Complainant a last-chance agreement. The Agency argues
that the Commission’s two appellate decisions are “diametrically
opposed,” and that if the issue in the complete actually pertains to
Complainant’s removal, then her EEO Counselor contact was untimely.
Upon review, we find that the Agency’s request meets neither of the
criteria for reconsideration. We note that our previous decisions
in fact are not inconsistent. Complainant filed a complaint whose
gravamen we determined to be that the Agency discriminated against her
by removing her or unsatisfactory, and complainant did not reasonably
suspect until she discovered, on June 21, 2010, that other individuals
with unsatisfactory attendance had been granted last-chance agreements
rather than being removed. Therefore, Complainant’s initial contact
with an EEO Counselor on June 29, 2010, was timely.
Accordingly, the Agency’s request for reconsideration is DENIED.
The decision in EEOC Appeal No. 0120112106 remains the Commission's
decision. There is no further right of administrative appeal on the
decision of the Commission on this request. The Agency shall comply
with the Order of the Commission, as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the
Complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The Agency shall
issue to Complainant a copy of the investigative file and also shall
notify Complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the Complainant
requests a final decision without a hearing, the Agency shall issue a
final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 12, 2012
Date
1 The Agency notes that its February 8, 2011, final decision and EEOC
Appeal No. 0120112106 incorrectly cited to Agency No. 4C-152-0011-10.
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0520110596
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013