0520110612
10-27-2011
Cynthia R. Gardner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Cynthia R. Gardner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520110612
Appeal No. 0120112119
Agency No. 1K-291-0029-10
DENIAL
Complainant timely requested reconsideration of the decision in Cynthia
R. Gardner v. United States Postal Service, EEOC Appeal No. 0120112119
(July 14, 2011). 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(b).
BACKGROUND
The facts and procedural background are set forth in the previous decision
and are incorporated herein by reference. We note the following salient
facts: Complainant worked as a Mail Processing Clerk at the Agency’s
Florence Processing and Distribution Facility located in Florence,
South Carolina. She filed a formal complaint alleging discrimination
based on her disability and age when:
On August 30, 2010, the Plant Manager met with her, explained the possible
elimination of Tour 2 and the availability of Tour 1 and Tour 3 bid jobs
and, while talking to a union steward about her concerns, she felt the
Manager’s intervention in the discussion was intimidating.
The Agency dismissed the complaint on the grounds that it failed to state
a claim. The previous decision, in affirming the Agency’s decision,
found that Complainant did not suffer a harm or loss with respect
to a term, condition, or privilege of employment for which there is
a remedy. Moreover, with respect to Complainant’s harassment claim,
the previous decision found that, even if true, the conduct at issue was
not sufficiently severe or pervasive to have altered the conditions of
her employment.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant tried to provide a more
detailed description of the August 30, 2010 meeting. At the outset,
she indicated that she is hearing impaired. She also maintained that
the Plant Manager used her impairment to coerce her into bidding on an
assignment that she did not want. Furthermore, she contends that when
she tried to confer with her union steward, the Plant Manager tried to
interrupt the conversation. Complainant maintained, “I was told after
the fact that I did not have to bid on the assignment that I currently
hold if I did not want to. It was the Plant Manager’s insistence on
the matter combined with his nasty attitude towards me which caused me
to feel threatened into doing something that I would not have otherwise
done.” Finally, she indicated that she was aggrieved in that she now
has to work nights instead of the daytime hours she previously worked.
DETERMINATION
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. 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.
Here, we find no evidence that Complainant has met the criteria for
reconsideration. Although Complainant may have been intimidated by the
Plant Manager’s words and actions, we find no persuasive evidence that
the previous decision clearly erred with respect to its determination
that Complainant failed to establish that she suffered a harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. To the extent that Complainant is alleging that
she was subjected to discriminatory harassment based on her disability,
we note that the Commission has repeatedly found that a supervisor’s
remarks unaccompanied by any concrete action are usually not sufficient
to state a claim of harassment. Backo v. U.S. Postal Serv., EEOC Request
No. 05960227 (June 10, 1996).
After reconsidering 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. 0120112119 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
___10/27/11_______________
Date
2
0520110612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110612