05a60108
11-17-2005
Colleen T. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Colleen T. Bailey v. United States Postal Service
05A60108
11-17-05
.
Colleen T. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A60108
Appeal No. 01A53778
Agency No. 1H-374-0020-05
DECISION ON REQUEST TO RECONSIDER
On October 15, 2005, Colleen T. Bailey (complainant) timely requested
reconsideration of the decision in Colleen T. Bailey v. John E. Potter,
Postmaster General, United States Postal Service, EEOC Appeal No. 01A53778
(September 12, 2005). EEOC regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the party demonstrates that: (1) the appellate 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).
The previous decision addressed the agency's dismissal of complainant's
complaint that (a) on February 2, 2005, she was denied sick leave for
the remainder of her tour when she became ill and went to the hospital;
and (b) when her second-level supervisor (S2) was hostile when told of
complainant's request. In that decision, the Commission reversed the
agency and directed the agency to process issue (a) on its merits;<1>
as to issue (b), the decision affirmed the agency's dismissal, finding
that it failed to state a claim.
Complainant has filed a request that the Commission reconsider the
previous decision. Inasmuch as issue (a) was reversed and sent back to
the agency for processing, we consider her arguments with regard to issue
(b). In her request, complainant contended that when S2 was informed of
her illness, complainant could hear "her yelling and screaming NO...she
can't leave...she has to stay here" and asserted that a co-worker asked
her personal questions, which caused her to feel threatened. As stated
in the previous decision, these incidents are not sufficiently pervasive
or severe to state a claim of harassment and hostile work environment,
and we agree that the agency properly dismissed issue (b). See 29
C.F.R. � 1614.107(a)(1).
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.
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. 01A53778 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on the decision of the Commission on this request.
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
_____11-17-05_____________
Date
1Notwithstanding the agency's subsequent approval of sick leave for
complainant's absence on February 2, 2005, the decision found that
complainant's request for compensatory damages in relief did not allow
the agency to dismiss this claim as moot.