0520110427
08-17-2011
Blanca O. Rivero, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Blanca O. Rivero,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 0520110427
Appeal No. 0120082675
Hearing No. 480-2007-0013X
Agency No. 4F-900-0142-06
DENIAL
Complainant timely requested reconsideration of the decision in Blanca
O. Rivero v. U.S. Postal Serv., EEOC Appeal No. 0120082675 (Mar. 23,
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).
The previous decision determined that an EEOC Administrative Judge (AJ)
properly granted summary judgment in favor the Agency, finding that the
Agency did not discriminate against Complainant on the bases of race
(Hispanic)1 and color (brown) when, on March 20, 2006, the Agency did not
allow her to return to her former secretarial position after her detail
had ended. The previous decision first found that Complainant did not
establish a prima facie case of discrimination because her comparators
were not similarly situated to her. Some of the alleged comparators
had different job titles on their PS Form 50s (mail processing clerk)
compared to Complainant (distribution window clerk), while others had
unofficially worked as clerk supervisors while Complainant unofficially
worked as a finance secretary. Even if Complainant had established a
prima facie case of disparate treatment, the previous decision found
that the Agency articulated legitimate, nondiscriminatory reasons for
assigning Complainant to a window clerk position because the facility had
a substantial operational need for window clerks. The alleged comparators
were allowed to stay in their acting supervisory positions because the
facility also needed clerk supervisors. The previous decision found
that Complainant did not sufficiently establish pretext.
In her request to reconsider, Complainant contends that the previous
decision clearly erred in relying on employees’ PS Form 50 to determine
whether prospective comparators were similarly situated to Complainant.
She believes the Commission was “naive” in referencing the PS Form
50s because the Agency frequently assigned facility employees where and
when they were needed, regardless of their Form 50.
After reconsidering the previous decision and the entire record, the
Commission finds that Complainant’s contentions do not 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. 0120082675 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
______8/17/11____________
Date
1 The Commission recognizes the term “Hispanic” to be a
characterization of national origin, not race.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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