05a51080
09-15-2005
Nancy A. Armery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nancy A. Armery v. United States Postal Service
05A51080
September 15, 2005
.
Nancy A. Armery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A51080
Appeal No. 01A41813
Agency No. 4B-018-0021-03
Hearing No. 160-2003-08542X
DENIAL
Nancy A. Armery (complainant) timely requested reconsideration of
the decision in Nancy A. Armery v. United States Postal Service, EEOC
Appeal No. 01A41813 (June 15, 2005). 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).
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. In her request, complainant argues that the AJ erred in
issuing summary judgment because there were material facts in dispute. To
support her argument she contends that the record was not fully developed
and that several statements of proposed witnesses and other documentary
evidence should now be accepted.
The Commission finds that this evidence should have been presented to
the AJ for consideration along with complainant's opposition to the
agency's motion for summary judgment. There was no argument during that
time that the record was incomplete and no attempt to submit affidavits
of witnesses to support her argument that there were genuine issues
in dispute. Complainant's belated attempt to raised these arguments
for the first time in this request is inappropriate and must be rejected.
Moreover, none of the arguments or evidence complainant has proffered
establishes that the previous decision was based on an erroneous
interpretation of fact or law. That is, our decision remains essentially
unchallenged, that even assuming complainant was disabled as defined by
the law, she failed to establish that the agency's actions were a pretext
for discrimination. Therefore, the decision in EEOC Appeal No. 01A41813
remains the Commission's final 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 (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
September 15, 2005
__________________
Date