0520090548
12-09-2009
Rosa A. Kemper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Rosa A. Kemper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520090548
Appeal No. 0120080324
Hearing No. 440-2007-00166X
Agency No. 4J-604-0131-06
DENIAL
Complainant timely requested reconsideration of the decision in Rosa
A. Kemper v. U.S. Postal Service, EEOC Appeal No. 0120080324 (May
22, 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).
In her underlying complaint, complainant alleged that she was retaliated
against in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., when she was issued a Notice
of Reduction in Grade. In Kemper v. U.S. Postal Service, EEOC Appeal
No. 0120080324, the Commission found that an EEOC Administrative Judge
(AJ) did not abuse his discretion when he denied complainant's request
for a hearing and remanded the case to the agency for a final agency
decision (FAD) because complainant failed to comply with the AJ's orders.
The Commission affirmed the FAD finding that complainant failed to prove
that the agency was motivated by retaliatory animus.
In her request for reconsideration, complainant reiterates arguments
previously articulated on appeal, including her contention that the
non-delivery of three pieces of Express Mail was the responsibility of
another supervisor. Further, complainant argues that the Commission made
a material error of fact when we determined that the AJ did not abuse
his discretion to remand the complaint for the agency to issue a FAD.
With regard to complainant's previously articulated arguments, 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), 9-17 (November 9, 1999).
Because we find that the appellate decision does not involve a clearly
erroneous interpretation of law or fact regarding these arguments,
we deny complainant's request for reconsideration on these matters.
Additionally, although complainant contends that the Commission erred in
finding that the AJ did not abuse his discretion to deny complainant's
hearing request, we find that complainant has not demonstrated that
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the appellate decision will have a substantial
impact on the policies, practices, or operations of the agency.
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. 0120080324 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 (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
December 9, 2009
Date
2
0520090548
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090548