0520090449
07-02-2009
Dolores M. Berliner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090449
Appeal No. 0120070327
Agency No. 4H330002306
DENIAL
Complainant timely requested reconsideration of the decision in Dolores
M. Berliner v. United States Postal Service, EEOC Appeal No. 0120070327
(October 23, 2006). 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).
On December 13, 2005, the agency and complainant entered into a settlement
agreement resolving her prior EEO complaint. The agreement contained two
(2) provisions governing procedures that complainant and management must
follow regarding complainant's request to change her current voluntary
separation to voluntary early retirement. Specifically, the agreement
established that complainant would "submit her request and all active
documents by January 23, 2006, certified mail..." and the agency would
submit complainant's letter to Postal Service Headquarters by January
11, 2005. The agreement also required the agency to send complainant,
by certified mail, copies of the letter submitted to Postal Service
Headquarters. In addition, the agreement established that if Postal
Service Headquarters rendered an unfavorable decision, complainant was
free to pursue action "in whatever venue she deems appropriate."
On January 26, 2006, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency specifically
implement the terms. On September 19, 2006, the agency issued a Final
Agency Decision (FAD), finding that it complied with the terms of the
settlement agreement. The agency found that management submitted a
letter to Postal Service Headquarters, dated January 3, 2006, and that
complainant had received a copy of this letter, as well as a response
to the letter dated January 30, 2006, from Postal Service Headquarters.
On October 23, 2006, complainant appealed the FAD. Complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate her complaint. In our prior decision we
affirmed the FAD, and we concluded that the agency was in compliance
with the December 13, 2005 settlement agreement between the parties.
In her request, complainant raises the same arguments she raised in
her appeal. In addition, complainant raises a new allegation that
she was forced to sign the settlement agreement. Complainant further
contends that her union representative had no experience in the matter,
and that she was not well-represented at the mediation hearing.
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 (rev. Nov. 9, 1999), at 9-17).
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question. In point of fact,
complainant raises new issues that she failed to raise in her initial
appeal. The Commission declines to consider these issues where they
are being raised for the first time in a Request for Reconsideration.
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. Complainant failed to present any argument or evidence that
would establish that the prior decision involved a clearly erroneous
interpretation of material fact or law. The decision in EEOC Appeal
No. 0120070327 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 (P0408)
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 (Z1008)
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
July 2, 2009
Date
2
0520090449
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090449