05A21174_r
02-25-2003
Carmelita C. Colatat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmelita C. Colatat v. United States Postal Service
05A21174
February 24, 2003
.
Carmelita C. Colatat,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A21174
Appeal No. 01A22855
Agency No. 4-A-088-0030-99
Hearing No. 170-A1-8640X
DENIAL OF REQUEST FOR RECONSIDERATION
Carmelita C. Colatat (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Carmelita C. Colatat v. United States Postal Service,
EEOC Appeal No. 01A22855 (July 26, 2002). EEOC Regulations provide that
the Commission may, in its discretion, 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).
According to the record, complainant filed a formal complaint against the
agency claiming discrimination on the bases of race (Asian), national
origin (Filipino), sex (female), and age (D.O.B. 8/4/43), as evidenced
by the following incidents:
On September 24, 1998, the agency issued complainant a Letter of Warning
for failing to secure her postal vehicle; and<1>
On January 4, 1999, the agency issued complainant a Letter of Removal,
for providing false information in connection with a workers'
compensation claim.
The agency investigated the complaint, and forwarded it to an EEOC
Administrative Judge (AJ) for a hearing. On March 18, 2002, the AJ
issued a decision without a hearing, finding no discrimination. The AJ
determined that on October 8, 1998, complainant filed a Federal Employee's
Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation
(CA-1 form) regarding an on-the-job knee injury which occurred on October
6, 1998. Furthermore, the AJ determined that an internal investigation
conducted by the agency revealed that complainant falsely claimed that the
knee injury occurred at work, and that the agency terminated complainant
for this reason. The AJ then found that complainant failed to establish a
prima facie case of discrimination on any of her alleged bases, finding
that complainant failed to identify similarly situated individuals
outside of her protected classes who were more favorably treated. The AJ
found that even assuming arguendo that she had established a prima facie
case, complainant failed to produce any evidence of pretext regarding
the agency's proffered legitimate reason for its action, i.e., that
complainant was terminated for making false statements on a CA-1 form.
On March 22, 2002, the agency issued a final action implementing the AJ's
decision finding no discrimination. On appeal, complainant requested
that the Commission provide her with a hearing so that her witness could
set the record straight. In response, in pertinent part, the agency
argued that complainant failed to present evidence to show that she was
terminated because of discrimination or in reprisal for prior protected
activity, rather than because she provided false information about the
site of her knee injury. In particular, the agency indicated that the
Office of Workers' Compensation Programs (OWCP) denied her claim for this
reason, and that a grievance she filed on her termination was denied by
an arbitration decision dated December 13, 1999, for this reason as well.
In the previous decision, the Commission determined that the AJ
properly issued a summary judgment decision and properly found
no discrimination. Specifically, the Commission determined that
complainant failed to establish a prima facie case on any of her alleged
bases of discrimination, finding that the individuals she identified
as comparatives were not similarly situated to her because they had not
submitted false information on a workers' compensation claim. Moreover,
the previous decision further determined that complainant failed to
present evidence that the agency's articulated reason was a pretext for
discrimination, and that she
otherwise failed to present evidence that the agency's action was
motivated by discriminatory animus toward her protected classes.
In her request for reconsideration, complainant submits an OWCP decision,
which is a reconsideration of the above referenced initial OWCP decision
denying her claim. In reconsidering its decision, the OWCP conducted a
hearing focused on whether complainant submitted false information about
her knee injury, and concluded that complainant's witnesses provided
strong credible testimony in her favor, establishing that she did not
injury her knee at home, but rather first experienced knee pain at work.
On the other hand, the OWCP determined that the statements previously
provided by the agency officials, as well as the statements provided by
the ambulance attendants who transported her to the hospital from work,
were all inconsistent with the medical evidence describing her knee
injury. Accordingly, on January 24, 2002, the OWCP issued a decision
reversing its initial decision and accepting complainant's workers'
compensation claim. Based on this OWCP decision, complainant requests that
the Commission reconsider its previous decision. Furthermore, complainant
avers that she submitted a copy of the OWCP decision prior to the issuance
of the previous decision, on July 15, 2002, but that it apparently was
not considered by the Commission in rendering the previous decision.
Upon review, we find that Commission records do not reflect a documentary
submission by complainant on or about July 15, 2002, and the appellate
record does not contain a copy of the January 24, 2002 OWCP decision.
Nonetheless, even though the Commission did not consider this evidence
at the time of the appeal, we note that the reconsideration criteria, as
set forth above, do not include submission of new and material evidence.
See 29 C.F.R. 1614.405 (b) et seq; Murphy v. Department of Veterans
Affairs, EEOC Request No.05A10724 (August 8, 2001).
However, even presently considering this evidence, we do not find
that it demonstrates error in the previous decision. Specifically, we
find that the record reveals that at the time that the agency decided
to terminate complainant's employment, it reasonably based its decision
on three separate independent fact-finding determinations: the agency's
internal investigation report, the OWCP's decision, and the arbitration
decision on complainant's grievance. Moreover, all three consistently
found that complainant provided false information on the CA-1 form
regarding the site of her knee injury. The OWCP's subsequent reversal of
its determination has no bearing on the reasonableness of the agency's
belief, at the time it made its decision to terminate complainant because
she provided false information on the CA-1. In this regard, we note that
the agency did not issue the Letter of Removal to complainant until all
three of the these determinations had been issued, and we find that its
forebearance in this instance further suggests that the agency terminated
complainant for misconduct (submitting false information on the CA-1),
and that this reason is not a mere pretext for discrimination towards
complainant based on race, sex, national origin, age, or retaliation.
After a review of 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. 01A22855 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this 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
February 25, 2003
__________________
Date
1Because complainant's request for
reconsideration concerns only her removal, as set forth in claim 2,
we will not address claim 1 further herein.