0520110073
01-11-2011
Jane J. Liu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Jane J. Liu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520110073
Appeal No. 0120102257
Agency No. 1F-968-0003-08
DENIAL
Complainant timely requested reconsideration of the decision in Jane
J. Liu v. U.S. Postal Service, EEOC Appeal No. 0120102257 (Aug. 26, 2010).
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).
BACKGROUND
In the underlying case, Complainant alleged she was discriminated against
on the basis of age (67) when she was not hired for a position as a
seasonal, casual employee in or about November 2007. At the conclusion
of the investigation, the Agency provided Complainant with a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). Complainant timely requested
a hearing, and over her objections, the AJ assigned to the case granted
the Agency's October 31, 2008, motion for a decision without a hearing
on March 26, 2010.
Specifically, the AJ found that Complainant failed to present any
evidence of age discrimination. The AJ determined that the evidence
presented supports the conclusion that Complainant's application
for the position in question was not further processed after the
Agency discovered that she had been convicted of two misdemeanors.
Additionally, Complainant answered the application question regarding
prior convictions untruthfully. Finally, the AJ noted that the Agency
hired at least four individuals who were similar in age to Complainant,
or older, which the AJ opined, defeated any inference that Complainant
was not hired because of her age. The Agency subsequently issued a
final order adopting the AJ's finding that Complainant failed to prove
that the Agency subjected her to discrimination as alleged.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argues that the
Commission's decision contains clearly erroneous interpretations of
material fact and law. In support of this argument, Complainant
reiterates and rephrases many of the arguments from her appeal.
Specifically, Complainant argues that the evidence regarding the Agency's
selection of individuals who were near the same age as Complainant,
or older, for the seasonal positions, should have been interpreted in
Complainant's favor. Additionally, Complainant argues that the Agency's
line of questioning regarding any prior conviction was unlawful unless
it could be demonstrated that obtaining this information was related to
business necessity. Finally, Complainant avers that her answer of "No"
to question E, 7a on the job application was correct and honest because
the matters were under appeal.
ANALYSIS AND FINDINGS
Complainant is reminded 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), Ch. 9
� VII.A. (Nov. 9, 1999). Because Complainant has not put forth any
arguments or contentions that were not previously considered in rendering
the underlying decision, the Commission finds that Complainant has not
demonstrated that the underlying decision involved a clearly erroneous
interpretation of material fact or law. Neither has Complainant argued
or demonstrated that the underlying decision would have a substantial
impact on the policies, practices, or operations of the agency.
CONCLUSION
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. 0120102257 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
__1/11/11________________
Date
2
0520110073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110073