0520140043
04-11-2014
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520140043
Appeal No. 0120113465
Hearing No. 550-2011-00037X
Agency No. 4F-945-0149-10
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120113465 (September 4, 2013). 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).
The previous decision affirmed the Agency's implementation of the Administrative Judge's (AJ's) decision without a hearing, in which the AJ found that Complainant had not established that she had been discriminated against. Complainant had filed an EEO complaint in which she claimed she had been discriminated against on the bases of race, national origin, sex, age, disability, and reprisal when she was sent home for lack of work, and when she was removed from employment. The AJ found that, assuming Complainant was an individual with a disability within the meaning of the Rehabilitation Act, she failed to prove she was a qualified individual with a disability because she could not perform the essential functions of her position with or without a reasonable accommodation. The AJ further found that Complainant was not able to establish a prima facie case of race, national origin, sex, age or reprisal discrimination with respect to being sent home early and the removal action, and that, assuming she had, Complainant did not show the Agency's legitimate, nondiscriminatory reasons to be pretext for discrimination. The previous decision affirmed the AJ's issuance of a decision without a hearing, and affirmed the AJ's findings of fact and law.
Complainant filed a request for reconsideration in which she argued that the previous decision was in error because it allowed the Agency to discriminate against limited duty or disabled employees by sending them home by claiming there was not work within their restrictions. The Agency filed a brief in opposition to Complainant's request for reconsideration in which it urged the Commission to deny the request for reconsideration.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant's arguments in support of her request for reconsideration do not show that the previous decision clearly erred as a matter of fact or law in its conclusions that she was not a qualified individual with a disability, and that she had not shown the Agency's reasons for its actions to be pretext for discrimination.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
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. 0120113465 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
April 11, 2014
Date
2
0520140043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140043