05a60168
11-30-2005
Diana Mendez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Diana Mendez v. United States Postal Service
05A60168
11-30-05
.
Diana Mendez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A60168
Appeal No. 01A54183
Agency No. 4F-907-0179-03
Hearing No. 340-2004-00219X
DENIAL
Diana Mendez (complainant) timely requested reconsideration of the
decision in Diana Mendez v. United States Postal Service, EEOC Appeal
No. 01A54183 (October 12, 2005). 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).
Complainant maintained that she was discriminated against based on
national origin (Mexican), sex (female), age (DOB: 07/21/69), and
disability (hypertension/anxiety related to dogs)<1> when she was placed
on Emergency Suspension on April 14, 2003, and issued a Notice of Removal
effective June 7, 2003, for altering her doctor's CA-17 report.
An EEOC Administrative Judge issued a summary judgment decision
finding no discrimination. The AJ found that complainant had failed to
establish a prima facie case of national origin, sex, age, and disability
discrimination. The AJ determined that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that complainant
was placed on emergency suspension and removed for unacceptable
conduct/unauthorized alteration of a medical document. The AJ found that
complainant failed to show that the agency's articulated reasons were
pretext for discrimination. The Commission affirmed the decision.
In her request for reconsideration, complainant contends that the
Commission erred when it failed to address her disability claim.
Complainant also maintains that the agency was not concerned with the
falsification until she threatened to report her managers. Further,
complainant contends that the AJ erred when she failed to hold a hearing,
as it prevented complainant from presenting witnesses who could testify
how managers treat disabled employees. Complainant also contends that a
hearing would have allowed her to demonstrate that the agency on several
occasions violated the Office of Workers Compensation laws.
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 Commission finds that complainant has failed to show
that the appellate 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 operations of the agency. The Commission
finds that while the appellate decision did omit listing complainant's
disability claim, it was considered along with the entire record.
Further, the Commission finds that complainant did not fully pursue
her right to a hearing. The record shows that complainant failed to
exercise her right to discovery in a timely manner, failed to respond
to the agency's motion for summary judgment, and failed to show that
material facts are at issue, as such, summary judgment was properly
issued and a hearing will not now be ordered. Accordingly, the decision
in EEOC Appeal No. 01A54183 remains the Commission's final 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 (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
____11-30-05______________
Date
1 For the purposes of analysis only, we assumed, without finding, that
complainant was an individual with a disability. 29 C.F.R. � 1630.2
(g)(1).