05A20800
08-05-2002
Rose M. Gardner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Rose M. Gardner v. United States Postal Service
05A20800
August 5, 2002
.
Rose M. Gardner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 05A20800
Appeal No. 01A02531
Agency No. 4-H-330-0078-98
Hearing No. 150-98-8750X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Rose
M. Gardner v. United States Postal Service, EEOC Appeal No. 01A02531
(April 9, 2002). EEOC Regulations provide that the Commission may, in
its discretion, 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 she was discriminated
against on the bases of race (African-America), sex (female), and age
(D.O.B. January 18, 1952), in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., when she was terminated as a result of a
probationary evaluation that stated that she had been charged with
�failure to work in a safe manner�. An EEOC Administrative Judge (AJ)
issued a decision without a hearing finding that complainant failed to
meet her burden of establishing that the agency's actions were motivated
by discriminatory animus. The agency's final agency decision (FAD)
adopted the findings of the AJ. On appeal, the Commission affirmed
the FAD.
In her request for reconsideration complainant appears to argue that she
was not given the opportunity to present evidence of similarly situated
employees, outside of her protected classes, who were treated more
favorably than she under similar circumstances. The record reflects,
however, that complainant was provided with ample opportunity to
profer such evidence prior to the issuance of the Commission's decision
on appeal. Commission regulations establish that reconsideration is
not a second appeal, and we therefore find that after a review of the
complainant's request for reconsideration, the previous decision, and
the entire record, complainant's 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. 01A02531
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this 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
August 5, 2002
__________________
Date