0520100100
03-11-2010
Mary L. Jones-Barker (Estate), Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Mary L. Jones-Barker (Estate),
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520100100
Appeal No. 0120080322
Hearing No. 410-2006-00225X
Agency No. 4H-300-0104-06
DENIAL
Complainant timely requested reconsideration of the decision in Mary
L. Jones-Barker(Estate) v. U.S. Postal Service, EEOC Appeal No. 0120080322
(October 2, 2009). 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).
Complainant alleged that she was discriminated against on the basis
of reprisal for prior EEO activity when, on February 1, 2006, she
was instructed to clock-out, leave the building, and not report back
to work until further notice because she had rejected a limited-duty
job offer. The agency produced a final agency decision after an EEOC
Administrative Judge (AJ) remanded the case back to the agency because
complainant's estate failed to respond to the AJ's Show Cause Order.
The agency found that, while complainant established a prima facie case
of discrimination based on reprisal, the agency had articulated legitimate
nondiscriminatory reasons for its actions, and complainant failed to show
that the agency's reasons were pretext for discrimination. Complainant
appealed the agency's decision to the Commission. The Commission affirmed
the finding of no discrimination. The Commission found that assuming
arguendo that complainant established a prima facie case of reprisal,
the agency articulated legitimate, nondiscriminatory reasons for its
actions; namely, that complainant was told not to report to work until
further notice after she rejected the agency's limited-duty job offer.
The agency explained that complainant was told not to return because there
was no work for complainant to do within her medical restrictions.
In the request for reconsideration, the complainant's representative
asserts that the facts demonstrate that complainant was discriminated
against when the agency failed to accommodate her disability and
subsequently placed her off the clock. The representative contends that
the Second Amended Pre-Hearing Report contains evidence which supports
complainant's allegation of discrimination.
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). The Commission finds that complainant's
representative failed to show that the appellate decision involved
a clearly erroneous interpretation of material fact or law, or that
the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. Further, the Commission finds,
and complainant's representative acknowledges, that the evidence he cited
as proof of discrimination is contained in the record. We find that
this evidence was previously considered and still does not show that the
agency's reasons were pretext for discrimination. Therefore, it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 0120080322 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 (P0408)
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 (Z1008)
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
March 11, 2010
Date
2
0520100100
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013