0520130156
05-10-2013
Nola Smith, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Nola Smith,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520130156
Appeal No. 0120113285
Hearing No. 440-2009-00072X
Agency No. 4J606010908
DENIAL
Complainant timely requested reconsideration of the decision in Nola Smith v. U.S. Postal Service, EEOC Appeal No. 0120113285 (October 26, 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).
The previous decision found that Complainant, who received the Agency's final decision on April 27, 2011, filed her appeal in an untimely manner. The previous decision found that Complainant's appeal was filed on June 25, 2011. In her request for reconsideration, Complainant maintains that her appeal was filed on May 26, 2011, not June 25, 2011, as stated in the previous decision. According to Complainant, she does not know why the Commission "[d]id not receive her appeal form or acknowledge[ ] her original filing date."
We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision 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. Here, we do not find that Complainant has met the criteria for reconsideration. According to Complainant, she "cannot produce any mailing receipt," that would establish her claim that her appeal was filed on May 26, 2011. We also note that a review of the Commission records does not reveal a submission prior to June 25, 2011, when Complainant's brief in support of her appeal was faxed to the Commission. This submission we note also contained a Notice of Appeal which was dated May 26, 2011.1
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. We find no persuasive evidence that conclusively establishes that Complainant's appeal was filed on May 26, 2011; therefore, we cannot find that the previous decision clearly erred. Accordingly, the decision in EEOC Appeal No. 0120113285 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
__5/10/13________________
Date
1 Complainant's brief also indicated that she filed her appeal on May 26, 2011.
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0520130156
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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