05a31087
09-04-2003
Ofelia Atkinson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ofelia Atkinson v. United States Postal Service
05A31087
09-04-03
.
Ofelia Atkinson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A31087
Appeal No. 01A32283
Agency No. 1H-331-0107-01
DECISION ON REQUEST TO RECONSIDER
On July 11, 2003, Ofelia Atkinson (complainant) timely initiated
a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Ofelia Atkinson v. John
E. Potter, Postmaster General, United States Postal Service, EEOC
Appeal No. 01A32283 (June 12, 2003). EEOC regulations provide that
the Commission may, in its discretion, reconsider any previous decision
where the party demonstrates that: (1) the previous decision involved
a clearly erroneous interpretation of material fact or law; or (2) the
decision will have a substantial impact on the policies, practices or
operation of the agency. 29 C.F.R. � 1614.405(b). For the reasons set
forth below, the complainant's request is denied.
Complainant claimed discrimination based on national origin (Hispanic),
color (white), sex, age (44), disability (anxiety and back injury), and
retaliation when her limited duty position was abolished on May 30, 2001.
Following the investigation, complainant initially requested a hearing but
withdrew her request. Thereafter, the agency issued a final decision,
concluding that the agency did not discriminate against complainant.
The previous decision affirmed the agency's determination, and complainant
has filed the instant request to reconsider the previous decision.
Due to a change in operations, LSM, PS-6, positions were abolished, and
incumbents were assigned to grade 5 positions, with salary retention for
a limited period of time; they were advised to secure new bid positions
to remain at grade 6. Complainant, a permanent LSM, was notified of
her reassignment to grade 5 in November 1997. In September 1998, she
was injured on the job and assigned to a limited duty position on a
temporary basis. The agency continued to pay her at a grade 6 salary,
however, until May 2001, when she was returned to a regular position
at grade 5. The agency explained that complainant was removed from
her temporary limited duty position, because she had not provided
updated medical documentation after several requests to do so and,
thus, no longer demonstrated a need for limited duty work. Further,
she was reassigned to a grade 5 position, because she had not obtained
a permanent grade 6 position.
In its decision, the agency concluded that complainant did not show
she was an individual with a disability and that, even had she met her
initial burdens, she failed to demonstrate that the agency's reasons for
its actions were pretextual. The agency concluded that complainant had
been properly notified and had the opportunity to acquire a new grade 6
position since 1997; having failed to do so, however, she was properly
returned to a grade 5 position at the expiration of her temporary limited
duty assignment.
In her request, complainant asserts that she was a person with
a disability. In support, she stated that she submitted documents
given to the agency's injury compensation office through November 1998,
identified portions of the agency's handbook, and provided copies of
documents already in the record.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow and is not merely a form of 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).
We find that complainant's request does not meet the criteria for
reconsideration. The information and documents provided by complainant
were available and reviewed with the previous decision, and none of
the submissions show that she timely updated her medical information.
To the extent that complainant argues that she had stated a prima
facie case of disability, even assuming she had done so, she failed to
demonstrate that the agency's explanation was not true, that she was
treated less favorably than similarly situated employees, or that the
agency's actions were motivated by prohibited considerations. For these
reasons, her request is denied.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request fails to meet any of the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the
complainant's request. The decision of the Commission in EEOC Appeal
No. 01A32283 (June 12, 2003) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
__09-04-03________________
Date