0520090664
12-10-2009
Jean A. Montgomery, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Jean A. Montgomery,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520090664
Appeal No. 0120080453
Hearing No. 440-2007-00176X
Agency No. 4J-606-0017-07
DENIAL OF REQUEST FOR RECONSIDERATION
On September 8, 2009, complainant timely requested reconsideration of
the decision in Jean A. Montgomery v. U.S. Postal Service, EEOC Appeal
No. 0120080453 (August 25, 2009). 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). For the reasons that follow,
the Commission denies the Request.
In its previous decision, the Commission found that the agency did not
discriminate against complainant in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
when: (a) based on age, she was instructed to leave her position as
Manager of the Englewood Station in the Chicago District on October 6,
2006; and (b) based on reprisal, she did not receive an annual salary
increase on January 25, 2007. The decision concluded that the agency,
through the Acting Manager of Customer Operations (S1) and the Manager of
Postal Operations (S2) for the Chicago District, articulated legitimate,
nondiscriminatory reasons for its actions, pointing to several performance
and managerial deficiencies in complainant's tenure at the Englewood
Station. Among other things, the agency stated that, in violation of
agency rules, complainant failed to report delayed or curtailed mail,
many supervisors and employees under her management sought to transfer
out of her station, her station received an excessive number of customer
complaints, she did not give information to the union or participate in
the grievance procedure, she did not timely submit accidents reports,
and her performance did not merit the salary increase. The agency
presented probative evidence in support of its charges.1
In order to merit the reconsideration of a prior decision, the
Commission's regulations require the requesting party to submit
written argument that tends establishes at least one of the criteria
of 29 C.F.R. � 1614.405(b), i.e., that the appellate decision made a
clearly erroneous interpretation of material fact or law, or that the
appellate decision will substantially impact the policies, practices,
or operations of the agency. The Commission's scope of review on a
request for reconsideration is narrow and is not merely 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.
In her Request, complainant continued to defend her performance and
deny the charges stated by the agency. She also disparaged S1 and
criticized her performance as a station manager and in her present
position. Complainant's Request does not address the two criteria for
reconsideration or provide argument and evidence to demonstrate pretext;
instead, the Request recited events without dates, presented incidents
that occurred recently or long ago but outside of the period of the
events in her complaint, or offered documents written by herself or not
in context. While complainant sought to challenge S1's credibility, she
does not rebut S2's statement and the supporting evidence in the record.
Complainant's censure of S1 does not meet the criteria for reconsideration
nor provide probative evidence to demonstrate pretext.
CONCLUSION
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. 0120080453 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
December 10, 2009
Date
1 Following the investigation of her complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). However, the AJ
remanded the matter to the agency to issue a final decision on September
4, 2007, when complainant did not respond to his orders and Notice to
Show Cause.
??
??
??
??
3
0520090664
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036