0520150003
03-12-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520150003
Appeal No. 0120123561
Hearing No. 531-2008-00369X
Agency No. 6U000000708
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120123561 (September 11, 2014). 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(c).
At the time of events giving rise to the underlying complaint, Complainant worked as a Management Analyst at the Agency's Headquarters in Washington, D.C. Complainant filed an EEO complaint in August 2008 alleging that the Agency discriminated against her on the bases of race (African American), national origin (Ghanaian) and sex (female) when she was subjected to numerous instances of harassment that culminated in her termination during her probationary period. Following an investigation, an EEOC Administrative Judge (AJ) issued a decision by summary judgment in favor of the Agency concluding Complainant failed to prove her discrimination claims.
Our prior appellate decision dismissed Complainant's appeal from the AJ's decision as untimely filed. The instant request for reconsideration of that decision challenges the grounds for the dismissal of the appeal.
The record establishes that the AJ's decision was issued on May 25, 2010. The Agency never issued a final order on the AJ's decision. Complainant filed her original appeal with the Commission on September 12, 2012, more than two years after the AJ's decision was issued.1
In her request for reconsideration, Complainant, through her attorney, argues that the Commission's regulations are unclear with respect to appeals following the decision of an administrative judge where no final order is issued by the Agency. Therefore, Complainant essentially argues that there is no timeframe for filing an appeal in these circumstances.
29 C.F.R. � 1614.109(i) provides, in pertinent part that, "[i]f an agency does not issue a final order within 40 days of receipt of the administrative judge's decision in accordance with 1614.110, then the decision of the administrative judge shall become the final action of the agency." (Emphasis added). Section 1614.401(a) allows a complainant to file an appeal from "an agency final action," and �1614.402(a) requires that such appeals be filed within 30 days of receipt of the final action. In this case, it is also undisputed that the appeal rights attached to the AJ's decision stated: "If the Agency has not issued its final order within forty (40) calendar days of its receipt of the hearing file and this decision, the complainant may file an appeal to the Commission from this decision." (Emphasis in the original). AJ Decision at 16.
Here, Complainant waited over two years from the date the AJ's decision became the final action of the Agency by operation of � 1614.109(i). Neither during the original appeal nor in the instant request for reconsideration has Complainant offered justification to explain or excuse this lengthy delay.
Accordingly, after reviewing 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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120123561 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
March 12, 2015
__________________
Date
1 While it is unclear from the record when exactly Complainant and her legal counsel received a copy of the AJ's decision, Complainant's brief in support of her request represents that counsel contacted the Agency on December 27, 2010, and again on March 8, 2011, regarding when the Agency would be issuing a final order on the AJ's decision. Therefore, it is clear that Complainant had received the AJ's decision by no later than December 2010.
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0520150003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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