0520070898
09-27-2007
Shawna L. Polson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Shawna L. Polson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520070898
Appeal No. 0120072481
Agency No. 4E852000306
DENIAL
Complainant timely requested reconsideration of the decision in Shawna
L. Polson v. United States Postal Service, EEOC Appeal No. 0120072481
(August 9, 2007). 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).
Our previous decision agreed with the agency's final decision finding that
it did not discriminate against complainant based on disability (asthma)
when she was informed on June 16, 2006, that the agency did not provide
her a reasonable accommodation by reinstating her. The decision held
that, even assuming, arguendo, that complainant established that she was
a qualified individual with a disability, she did not provide probative
evidence to show that the agency's action gave rise to an inference
of discrimination, that is, by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
In support of her request, complainant only stated that "I believe that
I can prove my case" and that she had additional evidence. In order
to merit the reconsideration of a prior 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). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.1
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. 0120072481 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
NOTICE OF RIGHTS - REQUEST TO RECONSIDER
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
____9/27/07______________
Date
1 The Commission's regulations require that complainant demonstrate in her
request that the previous decision was flawed or substantially impacted
the agency. 29 C.F.R. � 1614.405(b). Here, it was complainant's burden
to present such argument or evidence to meet one of the criteria; mere
reference to what she can produce in the future is insufficient.
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0520070898
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070898