05a50069
12-06-2004
Mary M. O'Malley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary M. O'Malley v. United States Postal Service
05A50069
12-06-04
.
Mary M. O'Malley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50069
Appeal No. 01A43967
Agency No. 1C-191-0008-03
Hearing No. 170-2004-00111x
DECISION ON REQUEST TO RECONSIDER
On October 13, 2004, Mary M. O'Malley (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Mary M. O'Malley v. John E. Potter, Postmaster General, United
States Postal Service, EEOC Appeal No. 01A43967 (September 7, 2004).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b). For the reasons set forth, below, the Commission denies
complainant's request.
On November 27, 2002, complainant sought EEO counseling and, on
December 27, 2002, filed the instant complaint, claiming that the
agency discriminated against her based on disability (perceived mental
impairment) and reprisal for prior EEO activity when it did not permit
her to return to work after clearance by the agency's medical director
on December 1, 2000. After an investigation, an EEOC Administrative
Judge (AJ) issued a decision without a hearing dismissing the complaint
for untimely EEO contact and for claim exclusion based on res judicata,
finding that complainant was attempting to re-litigate the same removal
action addressed in O'Malley v. USPS, EEOC Appeal No. 01994945 (September
26, 2002), request for reconsideration denied, EEOC Request No. 05A30136
(February 19, 2003). Our previous decision affirmed the agency's final
order implementing the AJ's decision.
On February 24, 1997, the agency issued complainant a Notice of proposed
removal based on her failure to attend a fitness-for-duty examination
(FFD).<1> In a pre-arbitration agreement in December 1999, the agency
agreed to return complainant to work if she submitted appropriate
medical documentation from an independent psychiatrist within 90 days.
Complainant did not respond to the agency until February 21, 2001,
when she refused to attend a previously-scheduled FFD. Meanwhile,
in a letter dated December 1, 2000, the agency's area medical director
authorized complainant's return to work, based on her discussions with
complainant's treating psychiatrist; however, complainant never provided
the documentation requested by the agency and was not returned to work.
No further activity occurred until September 2001, when the agency issued
complainant a second Notice of removal, for failure to comply with the
terms of the December 1999, pre-arbitration agreement. This Notice
made explicit reference to the Notice of removal at issue in EEOC Appeal
No. 01994945. Complainant filed a grievance<2> on this second removal,
but on November 29, 2002, the grievance was withdrawn by agreement
between the agency and the union. Complainant was removed from the
rolls on December 4, 2002.
In her request, complainant argued that her claim in this matter was a new
claim, that she maintained a viable action as a former employee, and that
her removal from the agency's rolls foreclosed pursuit of her grievance.
She also sought to raise a new claim that her removal from agency rolls
was in reprisal for her EEO counselor contact on November 29, 2002,
a few days previous.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of 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). The Commission finds that
the complainant's 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.
The previous decision cited two grounds for dismissal of the underlying
complaint at issue herein. First, the claim directed at the February 24,
1997, Notice of Removal had been previously raised by complainant and
addressed by the Commission. In EEOC Appeal No. 01994945, the Commission
found that the agency did not discriminate against her when it issued the
February 24, 1997, Notice. Where a complainant raises a matter that has
already been decided, s/he is precluded from litigating the matter again,
and the new claim is dismissed pursuant to the Commission's regulations
and the principles of res judicata. 29 C.F.R. � 1614.107(a)(1).
To the extent that complainant is attempting to re-frame her claim
as the agency's failure to return her to work based upon the December
2000, letter from the agency's medical director, she is, in fact, only
revisiting her prior claim. The matter at issue arises from the February
1997, Notice, and her failure to provide the required documentation.
Further, complainant's reliance on the December 1, 2000, letter as the
undergirding of her claim brings home the point that her November 2002
contact is untimely and must be dismissed. 29 C.F.R. � 1614.107(a)(2).
Finally, with regard to the new issue, that her final removal from the
rolls was in reprisal for a request for counseling on November 29, 2002,
even if complainant maintained a viable claim and established a prima
facie case of reprisal, she has not demonstrated that the agency's action
was because of discrimination.
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. 01A43967 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
____12-06-04______________
Date
1The February 1997, Notice charged complainant with failure to meet
attendance requirements; failure to report as scheduled; and failure to
follow instructions-AWOL. Complainant filed a complaint on this Notice.
In EEOC Appeal No. 01994945, the Commission found that, even assuming that
complainant established a prima facie case, the agency explained that from
June 1996, her last period of work, through February 1997, it had sought
medical documentation (psychiatric) to justify her continued absence
and that complainant failed to demonstrate that the agency's reason for
issuing the Notice was based on discriminatory reasons or animus.
2The filing of a grievance delays implementation of the agency's proposed
action until the matter is resolved or otherwise closed.