0520120523
01-03-2013
Myrna U. Parayno, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Myrna U. Parayno,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520120523
Appeal No. 0120121468
Hearing No. 554-2011-00107X
Agency No. 4E-980-0102-10
DENIAL
Complainant timely requested reconsideration of the decision in Myrna U. Parayno v. U.S. Postal Service, EEOC Appeal No. 0120121468 (June 12, 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).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian/Pacific Islander), national origin (Filipino), and reprisal for prior protected EEO activity when: (1) on August 3 and 4, 2010, the Manager Customer Services (MCS) violated a grievance settlement by allowing an employee (E1) to work at Burien Station; (2) on August 4, 2010, MCS forced her to waive 0.75 hours of overtime; (3) on August 16, 2010, the Acting Supervisor (AS) cursed at her; and (4) on September 25, 2010, AS questioned her about her break and took her off her break.
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's (AJ) decision without a hearing finding no discrimination. Specifically, the appellate decision found that the AJ's issuance of a decision without a hearing was appropriate because Complainant had not identified genuine issues of material fact. Moreover, the appellate decision found that the preponderance of the record evidence did not establish that unlawful discrimination occurred.
Regarding claim 1, the appellate decision cited testimony from MCS that the station was short on window clerks, he requested a window clerk from the pool, and E1 was sent to the station. In addition, the appellate decision cited testimony from MCS that, although Complainant told him there was a grievance settlement stating that E1 could not be assigned to the station, he did not find such an agreement. Further, the appellate decision found that the record reflected the following: Complainant and E1 had an altercation in 2009; a grievance settlement was executed on August 3, 2010, which precluded E1 from working at the station; and it was unclear if the grievance settlement was ever forwarded to MCS.
Regarding claim 2, the appellate decision found that the record reflected that Complainant, upon learning that E1 was scheduled to work on August 4, 2010, requested to waive the overtime. In addition, the appellate decision cited testimony from MCS that he at no time forced Complainant to waive the overtime.
Regarding claim 3, the appellate decision found that the record reflected that Complainant was scheduled to work at 3:00 p.m. but did not arrive at work until 4:45 p.m. In addition, the appellate decision cited testimony from AS that she said to Complainant (in response to Complainant yelling that AS needed to do a particular task), "Shit, if you would have been here like the schedule said, you could have done the work yourself."
Regarding claim 4, the appellate decision found that the record reflected that the station was left with only one clerk during the course of the shift. In addition, the appellate decision cited testimony from AS that she asked Complainant if she was on break, said to Complainant that there was only one clerk at the window, but at no point told Complainant to come off her break and go to the window.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant asked the Commission to "reconsider [her] appeal." First, Complainant argued that the Agency issued its final order without investigating her complaint or offering her the opportunity for a hearing. Second, Complainant argued that the EEO Investigator failed to investigate the 2009 altercation between her and E1 or the reasons why management did not sign the grievance settlement in 2009. Third, Complainant argued that the MCS and AS subjected her to a hostile work environment.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Regarding her first argument, the record reflects that the Agency conducted an investigation, provided Complainant with a copy of the report of investigation, and gave her notice of her right to request a hearing before an AJ. Regarding her second argument, we find that Complainant has not shown that the appellate decision clearly erred in determining that the record was adequately developed for summary disposition. Specifically, we find that the facts surrounding the 2009 events mentioned by Complainant are not relevant to the ultimate question in the instant complaint - whether MCS and AS discriminated against Complainant in August and September 2010 as alleged. Regarding her third argument, we find that Complainant has not shown that the appellate decision clearly erred in finding no discrimination. Specifically, Complainant has not shown that the actions of MCS and AS were based on her race, national origin, or prior EEO activity.
Complainant asked the Commission to "reconsider [her] appeal." We remind Complainant, however, 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), at Ch. 9, � VII.A. (Nov. 9, 1999). Instead, "[t]he burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration." Id. at Ch. 9, � VII.B.2. We find that Complainant here has not met that burden.
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. 0120121468 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
___1/3/13_______________
Date
2
0520120523
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120523