0520090311
08-03-2009
Paula K. Goldwyn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paula K. Goldwyn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090311
Appeal No. 0120070443
Agency No. 4E680006406
DENIAL
Complainant timely requested reconsideration of the decision in Paula
K. Goldwyn v. United States Postal Service, EEOC Appeal No. 0120070443
(February 10, 2009). 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).
On August 26, 2006, complainant filed a formal complaint alleging
discrimination on the bases of religion (Christian), sex (female),
disability (anxiety/depression), and in reprisal for prior EEO activity
when:
1. On April 21, 2005, she was issued a Notice of Removal for Unacceptable
Performance; and
2. On April 5, 2006, she was paid only a portion of a grievance
settlement.
On September 20, 2006, the agency dismissed Issue 1 pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The agency
dismissed Issue 2 pursuant to 29 C.F.R. � 614.107(a)(1), for failure to
state a claim. Specifically, the agency found that complainant lodged
a collateral attack on the grievance process and failed to establish
that complainant was an aggrieved employee. The prior decision found
complainant did timely contact an EEO Counselor with respect to Issue 1,
and reversed the agency's decision. The prior decision affirmed the
dismissal of Issue 2 as a collateral attack on the grievance process.
In her Request, complainant challenges the agency's definition of
the complaint. She states that her complaint described incidents of
harassment since 2004, but these issues were not accepted as part of
her complaint. Complainant further contends that Issue 2 should have
been accepted for investigation.
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. Complainant failed to present any argument or evidence
that would establish that the prior decision involved a clearly erroneous
interpretation of material fact or law.
Complainant suggests that she raised the earlier issues of harassment
with the EEO Counselor, and they should have been accepted as part of
her complaint. The agency maintains that its records reveal complainant
contacted EEO Counselors in 2004-2005 to raise these issues, but
failed to complete the necessary paperwork, and the matters were closed.
Complainant failed to dispute this assertion. Further, the record reveals
that these instances of alleged harassment were discrete acts which should
have been timely raised with an EEO Counselor. With respect to Issue 2,
we find no clearly erroneous interpretation of material law or fact.
The decision in EEOC Appeal No. 0120070443 remains the Commission's
decision. There is no further right of administrative appeal on the
decision of the Commission on this request.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (Z1008)
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
August 3, 2009
Date
2
0520090311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0520090311