0520140037
04-11-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520140037
Appeal No. 0120132300
Hearing No. 480-2011-00271X
Agency No. 4E-890-0088-10
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132300 (Sept. 20, 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 an EEOC Administrative Judge's (AJ) decision, which was issued without a hearing. The AJ's decision found that Complainant's claim of constructive discharge based on disability discrimination should be subsumed into the ongoing McConnell v. U.S. Postal Service class action case. The AJ dismissed Complainant's hearing request on this claim. The AJ issued a decision without a hearing in favor of the Agency on Complainant's claim that she was subjected to discrimination based on reprisal when she was not allowed to keep as a representative the individual she had chosen. That representative had signed a settlement agreement with the Agency in 2008 in which she agreed not to represent complainants who had filed EEO complaints against the Agency. The previous decision found that the AJ had properly ordered that Complainant's disability claim be subsumed into the McConnell class case, and that the AJ had properly found that Complainant had not established that she had been subjected to reprisal when the Agency challenged the representative's decision to represent Complainant, and the representative withdrew from that role voluntarily.
In her request for reconsideration, Complainant argued that the previous decision was in error because her claim of reprisal discrimination with respect to her constructive discharge claim would not be subsumed into the McConnell class, and she claimed that it had not been addressed on the merits in the AJ's decision. She also claimed that the Agency should not be permitted to "pay off" representatives so that they would not act as EEO representatives for other Agency employees.
The Agency submitted a brief in opposition to Complainant's request for reconsideration in which it argued that Complainant had been ordered by the AJ to provide any evidence in support of her claim of retaliation with respect to the constructive discharge claim, which would then allow the AJ to retain jurisdiction over that part of the constructive discharge claim, and that Complainant had failed to do so prior to the AJ dismissing the hearing request and subsuming that claim into the McConnell class. It also argued that the AJ had considered Complainant's public policy arguments about whether an EEO representative should be able to sign a settlement agreement in which she agrees not to represent future complainants, and decided that it was within the rights of the EEO representative to do so when it was to his or her own financial (or other) advantage. It urged the Commission to affirm the previous decision.
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 made a clearly erroneous mistake of fact or law in its conclusions that her constructive discharge claim was properly subsumed into the McConnell class, and that Complainant had not established that she had been discriminated against based on reprisal when her representative voluntarily withdrew from representing her. Although Complainant alleged that the AJ and the Agency acted inappropriately, we do not find any evidence in the record to support that contention.
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. 0120132300 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
0520140037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140037