0520130179
05-31-2013
Gwendolyn G. Thompson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Gwendolyn G. Thompson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520130179
Appeal No. 0120120443
Agency No. 1H-304-0029-10
DENIAL
Complainant timely requested reconsideration of the decision in Gwendolyn G. Thompson v. U.S. Postal Service, EEOC Appeal No. 0120120443 (November 15, 2012). 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 filed an August 30, 2010, formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), disability, and reprisal for prior EEO activity. The Agency dismissed the complaint on various procedural grounds, including that Complainant had previously appealed the matter to the Merit Systems Protection Board (MSPB). After Complainant appealed the dismissal to the Commission, we reversed the dismissal and remanded the complaint to the Agency. We found that the Agency had improperly identified Complainant's complaint as an attempt to re-litigate her prior claim that the Agency discriminatorily placed her on enforced leave. Instead, we concluded, the complaint alleged that the Agency discriminated against Complainant by refusing to allow her to return to work after she provided additional medical documentation. Thompson v. U.s. Postal Serv., EEOC Appeal No. 0120110170 (Feb. 17, 2011).
The Agency conducted an investigation, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Subsequently, the Agency filed a Motion for Remand on the ground that the complaint fell within the jurisdiction of the MSPB. Concluding that the matter was a mixed case, the AJ remanded the complaint to the Agency. On August 1, 2011, the Agency issued a final decision finding no discrimination. The Agency, which identified the matter as a mixed-case complaint, provided Complainant with appeal rights to the MSPB rather than the EEOC.
In the meantime, Complainant filed an appeal with this Commission. Our previous decision dismissed Complainant's appeal. In that decision, we noted that an EEOC AJ and the Agency determined that this matter involved a mixed-case complaint. We also noted that Complainant appealed the Agency's August 1, 2011, decision to the MSPB and that the MSPB AJ dismissed the matter without prejudice with the right to re-file at a later date. Thompson v. U.S. Postal Serv., EEOC Appeal No. 0120120443 (Nov. 15, 2012).
Complainant, through her representative, filed a request for reconsideration and sought 30 days within which to file a brief in support of her request.1 In response, the Agency submitted a December 14, 2012, Notice to OFO and MSPB stating that the Agency returned Complainant to work in February 2012 pursuant to a February 1, 2012, settlement agreement. Complainant responded that the settlement agreement pertained to a different complaint than to the complaint at issue here.
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; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Complainant's assertions regarding the February 2012 settlement agreement do not demonstrate that the previous decision erroneously stated that the matter at issue here involved a mixed-case complaint. Similarly, her assertions do not demonstrate that the decision erroneously dismissed her appeal. Accordingly, we find that Complainant has failed to show that the previous decision involved an erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the Agency.
After reviewing 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. 0120120443 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
May 31, 2013
Date
1 As the previous decision noted, supporting documentation must be submitted with the request for reconsideration.
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0520130179
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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