05a50604
03-21-2005
Dora Gordon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dora Gordon v. United States Postal Service
05A50604
03-21-05
.
Dora Gordon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50604
Appeal No. 01A50905
Agency No. 1F-955-0005-04
DECISION
Dora Gordon (complainant) timely requested reconsideration of the
decision in Dora Gordon v. John E. Potter, Postmaster General, United
States Postal Service, EEOC Appeal No. 01A50905 (January 31, 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 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 the previous decision, the Commission affirmed the agency's dismissal
of complainant's complaint, finding that the complaint made a collateral
attack on a proceeding before the Department of Labor, Office of Workers'
Compensation Programs (DOL). In her request, complainant asserted that
specific changes should be made to documents submitted by the agency
to DOL pursuant to a settlement agreement; however, the agreement had
became void.<1>
In order to merit the reconsideration of a prior 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). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
Because complainant's claims in the EEO process seek to affect agency
documents properly submitted in a proceeding before DOL, her complaint
is a collateral attack on a legal matter before another agency. For this
reason, we find that the agency's dismissal of her complaint was correct.
Also, as stated in the previous decision, the agency has the right to
contravene her claim of traumatic injury before DOL, and the determination
on her workers' compensation claim lies with DOL.
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. 01A50905 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
____03-21-05______________
Date
1Complainant sought EEO counseling in December 2003, claiming
discrimination based on national origin (Hispanic) and disability
(tendinitis) when the agency did not believe her account of an
on-the-job injury in October 2003, and made false statements
to DOL. In a settlement agreement dated January 12, 2004 (SA),
the agency agreed, inter alia, to revise the forms submitted
to DOL. On June 28, 2004, complainant was advised by the agency
that it could not comply with the SA and to file a new complaint.
The dismissal of her new complaint was the subject of the appeal
in the previous decision.