05a40142
12-16-2003
Danna McCullough v. United States Postal Service
05A40142
12-16-03
.
Danna McCullough,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A40142
Appeal No. 07A20051
Agency Nos. 4J-604-1185-99; 4J-604-1194-96; 4J-604-0062-97;
4J-604-0063-97; 4J-604-0034-97; 4J-604-0143-97
Hearing Nos. 210-A0-6302x; 210-A0-6340x; 210-A0-6341x;
210-A0-6342x; 210-A0-6343x; 210-A0-6344x
DECISION ON REQUEST TO RECONSIDER
On October 23, 2003, Danna McCullough (complainant) initiated a request to
the Equal Employment Opportunity Commission to reconsider the decision
in Danna McCullough v. John E. Potter, Postmaster General, United
States Postal Service, EEOC Appeal No. 07A20051 (September 23, 2003).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous 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).
In EEOC Appeal No. 07A20051, the Commission affirmed the final action
of the agency. The agency rejected the decision of the Administrative
Judge (AJ), which found that the agency discriminated against complainant
based on race (black) and sex when she was not allowed to assume a bid
position on the grounds that she failed to provide adequate medical
documentation.<1> The previous decision found that, even assuming
complainant established a prima facie case of race and sex discrimination,
the agency articulated legitimate, nondiscriminatory reasons for its
action, i.e., complainant's medical documentation did not state that
she would be able to perform the full duties of the position within six
months, and she did not demonstrate that the agency's explanation was
not true or based on prohibited considerations.
In her request, complainant argued that she showed a hostile work
environment, referenced an Executive Order not enforced by the EEOC,
and contended that her prima facie case is sufficient to support
discrimination; in addition, she referred to the collective bargaining
agreement instead of the local memorandum of understanding in place at
the facility, submitting an unidentified page in support.
In order to merit the reconsideration of a prior Commission 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).
Complainant's request does not demonstrate that the previous decision
involved a clearly erroneous interpretation of material fact or law
or that the decision will have a substantial impact on the policies,
practices or operation of the agency.
Complainant misstated her burdens of proof and the impact of establishing
a prima facie case under the McDonnell Douglas scheme. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Assuming her prima facie case,
and once the agency articulated legitimate, nondiscriminatory reasons
for its actions, the ultimate burden of persuasion returned to the
complainant to demonstrate by preponderant evidence that the reasons
given by the agency for its actions were not true and pretextual
or a sham or disguise for discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). It is
the complainant's burden to demonstrate that the agency's action was
more likely than not motivated by discrimination, that is, that the
action was influenced by legally impermissible criteria, i.e., here,
race and sex. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against her, complainant cannot prevail. After a review
of complainant's request and the entire file, we find that complainant
has not provided probative evidence to demonstrate pretext. Further,
complainant has not shown that the incident of which she complained
constituted illegal harassment or a hostile work environment.
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. 07A20051 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
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
___12-16-03_______________
Date
1Complainant also claimed discrimination based on disability (tendinitis,
left foot) and reprisal (for prior EEO activity) and referred to
other incidents, but she did not appeal the AJ's decision finding no
discrimination on any of these claims.