0520100474
09-24-2010
Karen L. Huston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Karen L. Huston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Request No. 0520100474
Appeal No. 0120090079
Agency No. 4C440005608
DENIAL
Complainant timely requested reconsideration of the decision in Karen L. Huston v. U.S. Postal Service, EEOC Appeal No. 0120090079 (June 18, 2010). 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).
BACKGROUND
The record indicates that Complainant filed a formal complaint on February 20, 2008, alleging that the Agency discriminated against her on the basis of her disability when: (1) on December 31, 2007, she was placed in an AWOL (Absent Without Official Leave) status, and (2) on unspecified dates her paychecks were withheld. When Complainant failed to request a decision without a hearing or a final agency decision, the Agency issued a decision pursuant to 29 C.F.R. � 1614.110(b).
FINAL AGENCY DECISION
In its final decision (FAD), the Agency determined that Complainant failed to prove a prima facie case of disability discrimination because she did show that comparatively situated employees outside of her protected class were treated more favorably. The Agency found that Complainant also failed to present any evidence indicating that she was denied a reasonable accommodation. The Agency found that it provided legitimate, nondiscriminatory reasons for its actions, and that Complainant failed to show that the reasons were pretextual. On these grounds, the Agency determined that Complainant failed to establish that she was subjected to discrimination as alleged.
APPELLATE DECISION
In its appellate decision, the Commission noted that in Complainant's Notice of Appeal (EEOC Form 573), she acknowledged her receipt of the FAD on August 23, 2008. The Commission found that the FAD provided notification to Complainant that she had the right to file an appeal to the Commission within 30 calendar days of her receipt of the decision. See 29 C.F.R. � 1614.402(a). In this regard, the Commission determined that in order to be considered timely, Complainant had to file her appeal no later than September 22, 2008. Id. The Commission noted that regulations further provide that in the absence of a legible postmark, a document will be considered timely if it is received by mail within five days of the expiration of the filing period. See 29 C.F.R. � 1614.604(b). However, the Commission determined that Complainant's appeal was received on October 6, 2008, more than five days past the expiration of the filing period. Finally, the Commission found that Complainant provided no justification for an extension of the applicable time limit for filing her appeal. Accordingly, on these grounds, the Commission dismissed Complainant's appeal pursuant to 29 C.F.R. � 1614.403(c).
In her request, Complainant averred that due to the actions of a postal clerk, her mail was often delayed. Complainant also raised arguments which address the merits of her complaint. In this regard, she averred that the Agency changed her retirement date which resulted in lost retirement compensation. She also averred that she suffers from depression, insomnia, fear and anger.
ANALYSIS AND FINDINGS
The Commission's scope of review on a request for reconsideration is narrow and is not a second appeal. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). In a request to reconsider, a Complainant is required to show that the appellate decision involved a clearly erroneous interpretation of material fact or law; or 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).
The record indicates that Complainant submitted her appeal beyond the required filing period. Moreover, the previous decision correctly determined that Complainant did not provide argument or evidence which would have justified an extension to the filing period. Therefore, we find that the appellate decision properly dismissed Complainant's appeal for failure to timely file her appeal as stipulated by 29 C.F.R. � 1614.403(c). After a careful review of Complainant's arguments, we find that her request does not meet the regulatory criteria of 29 C.F.R. � 1614.405(b), in that the request does not identify a clearly erroneous interpretation of material fact or law, nor does it show that the underlying decision will have a substantial impact on the policies, practices, or operation of the Agency.1
CONCLUSION
Accordingly, after reconsidering 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. 0120090079 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
__9/24/10________________
Date
1 In this regard, we note that Complainant did not indicate when she filed her appeal that there was a problem with her mail being delayed.
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0520100474
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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