01A43967
09-07-2004
Mary M. O'Malley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary M. O'Malley v. United States Postal Service
01A43967
09-07-04
.
Mary M. O'Malley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43967
Agency No. 1C-191-0008-03
Hearing No. 170-2004-00111X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 26, 2004, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of disability (perceived mental impairment)
and reprisal (prior EEO activity) when, on or after December 1, 2000,
the agency had not permitted her to return to work.
Complainant was first issued a notice of removal on February 24, 1997.
This was one of four incidents at issue in Mary O'Malley v. John
E. Potter, Postmaster General, United States Postal Service, EEOC Appeal
No. 01994945 (September 26, 2002), request for reconsideration denied EEOC
Request No. 05A30136 (February 19, 2003). In EEOC Appeal No. 01994945,
the Commission affirmed the agency's final decision, finding that the
agency's decision to issue the notice of removal was not motivated by
discrimination.<1>
On December 22, 1999, complainant entered into a non-EEO settlement
agreement under which she would be permitted to return to work if
she submitted appropriate medical documentation from an independent
psychiatrist within 90 days of the date that the agreement was signed.
Complainant had not provided the requested documentation within the
time frame specified by the agreement, and did not provide a response
until February 21, 2001.<2> On that date, complainant, through counsel,
advised the agency that she would not be attending a medical evaluation
that had been previously scheduled.
No further action had been taken on the matter until September 2001,
when the agency issued complainant a second notice of removal dated
September 10, 2001, for failure to comply with the terms of the
pre-arbitration settlement agreement entered into on December 22, 1999.
The notice made explicit reference to the notice of removal at issue
in EEOC Appeal No. 01994945.<3> Complainant filed a grievance on this
second removal, but on November 29, 1992, the grievance was withdrawn
by agreement between the agency and the union representing complainant.
Complainant was effectively removed from the rolls on December 4, 2002.
The agency investigated the complaint and thereafter referred it to an
EEOC Administrative Judge (AJ), who dismissed it on the grounds that
complainant was attempting to re-litigate the removal action addressed
in EEOC Appeal No. 01994945. The agency thereafter implemented the AJ's
decision in its final order.
Administrative Judges may dismiss complaints pursuant to 29 C.F.R. �
1614.107, on their own initiative, after notice to the parties, or upon
an agency's motion to dismiss a complaint. 29 C.F.R. � 1614.109(b).
A complaint that states a same claim that has already been decided
by the Commission must be dismissed. 29 C.F.R. � 1614.107(a)(1).
Notwithstanding complainant's attempts to characterize the incident at
issue as an ongoing refusal to rehire, the language in the September
2001 notice of removal confirms that the removal that was carried out in
December 2002 was the same removal that had been initiated in February
1997, but had been forestalled by the two grievances. We therefore
agree with the AJ that complainant raises the same claim that had been
decided by the Commission in Appeal No. 01994945.
Accordingly, the agency's final order implementing the AJ's decision to
dismiss the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
____09-07-04______________
Date
1The notice stated, �This is not a notice
of your removal or separation from the Postal Service, but a notice
of our proposal to take such action if you do not comply with these
instructions.�
2In a memorandum dated December 1, 2000, the agency's area medical
director indicated that complainant could return to work. He based
this assessment on discussions with complainant's treating psychiatrist.
There were no indications, however, that complainant ever provided the
documentation requested by the agency.
3The notice specifically stated: �On February 18, 1997, you were
issued a removal notice for Failure to Meet Attendance Requirements /
Failure to Report as Scheduled / Failure to Follow Instructions�AWOL.
It was mutually agreed by the parties that the subject removal would be
held in abeyance in an effort to resolve the issues. [emphasis added].