0520080655
08-14-2008
Michelle D. Howey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520080655
Appeal No. 0120072179
Agency No. 4H-320-0114-05
DENIAL
The agency timely requested reconsideration of the decision in Michelle
D. Howey v. United States Postal Service, EEOC Appeal No. 0120072179
(June 20, 2008). 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).
In our prior decision, we found that the agency failed to comply with
our order to supplement the record with an affidavit from the Medical
Director, the agency's acceptance of the opinions of the new examiner, and
copies of a September 15, 2005 psychiatric report. See Howey v. United
States Postal Service, EEOC Appeal No. 0120072179 (June 20, 2008).
While the agency's March 2, 2007 final decision stated that a copy of
the report was sent to complainant and her physician, the record did
not contain a copy of the report and complainant argued that she had
not received her copy either. See id. Further, the agency did not
furnish a copy of the purported affidavit. See id. Concluding that the
agency's "inexplicable failure to comply with the Commission's order"
constituted a breach of the agreement, the agency was ordered to reinstate
the complaint. See id.
In its request for reconsideration, the agency argues that it did provide
both the complainant and the Commission with the requested evidence.
While the agency submits a postal service "Track/Confirm-Intranet
Item Inquiry-Domestic" print-out showing that an item was delivered
to the Commission, it does not establish that the documents at issue
were contained within the delivered item. In fact, the identification
number referenced on the tracking statement matches the number on the
envelope received by the Commission during the processing of 0120072179.
The documents contained therein included a brief by the agency, as well
as other documents, but not those cited in the Commission order.
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. 0120072179 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER
The agency is ordered to take the following action within 45 calendar
days of the date this decision becomes final:
The agency will reinstate the complaint filed under Agency
No. 4H-320-0114-05 and commence processing the complaint from the
point at which processing ceased, with appropriate rights being given.
At the same time, the agency will also notify complainant, in writing,
that it has reinstated her complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (Z0408)
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
August 14, 2008
Date
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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