0520100055
01-05-2010
Theresa M. Hensel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Theresa M. Hensel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Request No. 0520100055
Appeal No. 0120080074
Hearing No. 530-2006-00179X
Agency No. 1C-081-0004-05
DENIAL
On October 21, 2009, the agency timely requested reconsideration of
the decision in Theresa M. Hensel v. U.S. Postal Service, EEOC Appeal
No. 0120080074 (September 18, 2009). On November 9, 2009, complainant
filed a response to the agency's request and, also, separately filed
her on request for reconsideration.1 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).
Complainant had filed an EEO complaint claiming that she had been
discriminated against based on her sex and in reprisal for prior protected
EEO activity when she was harassed, as exemplified by nine incidents
that were delineated in her complaint. The complainant requested a
hearing before an EEOC Administrative Judge (AJ), who found the matter
appropriate for a decision without a hearing. In his decision, the AJ
found that six of the listed incidents were discrete acts which were
untimely raised with an EEO Counselor, and therefore should be dismissed.
He noted that complainant withdrew the ninth incident. The AJ further
found that complainant had not established a prima facie case of reprisal
discrimination because of the length of time between her previous EEO
activity and the current events, and because she had not shown that the
involved management officials had any knowledge of her prior EEO activity.
Of the remaining two incidents, the AJ found that complainant had not
established a nexus between the incidents and her sex.
In the previous decision, the Commission found that the AJ properly found
that the complaint was appropriate for a decision without a hearing, as
no material facts were in dispute. The previous decision found, however,
that the AJ erred when he did not consider the six untimely incidents
as background evidence in support of complainant's claim of harassment.
The previous decision vacated the agency's final order, and remanded the
case for further processing by the EEOC Hearings Unit at the appropriate
District Office.
In its request for reconsideration, the agency argued that when the
AJ used the language "Lastly, when considering these claims as a
whole..." that meant he was considering all of complainant's listed
incidents when evaluating the merits of her harassment claim, and not
just the remaining timely incidents. The agency asserted that reading
the AJ's decision in its entirety, it is clear that he was using the
untimely incidents as background for his analysis of the remaining claims,
both with respect to complainant's claim of sex discrimination and her
claim of reprisal discrimination. In her response, complainant argued,
in pertinent part, that there was no "legally cognizable justification
for the agency's position" and that "its argument for reconsideration
must be rejected."
Upon review, we find that the agency did not establish that the
previous decision clearly erred in its assessment of the AJ's decision.
Although there was a lack of clarity in the AJ's statement that he
was considering "these claims as a whole," we find that this statement
could have referred to either the two remaining timely incidents, or all
the incidents of the complaint. Therefore, we find that the previous
decision's interpretation of the AJ's conclusion was reasonable even if
another person may have reached a different conclusion.
After reconsidering the previous decision and the entire record, the
Commission finds that the agency'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. Complainant's request was untimely filed and
is also denied. The decision in EEOC Appeal No. 0120080074 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency shall submit to the Hearings Unit of the Cleveland Field
Office a request for assignment to an AJ to this case within thirty
(30) calendar days of the date this decision becomes final. The agency
is directed to submit a copy of the complaint file to the EEOC Hearings
Unit within thirty (30) calendar days of the date this decision becomes
final. The agency shall provide written notification to the Compliance
Officer at the address set forth below that the complaint file has been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 and the agency shall issue a final action in accordance with
29 C.F.R. � 1614.110.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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
__01/05/10________________
Date
1 Complainant's request for reconsideration, however, is untimely and will
not be considered. By regulation, requests must be filed within thirty
(30) calendar days after the party receives the previous decision.
29 C.F.R. � 1614.405(b). A document is timely if it is received or
postmarked before the expiration of the applicable filing period.
29 C.F.R. � 1614.604(b). The Commission's previous decision included
a Certificate of Mailing indicating that, for purposes of timeliness,
the Commission would presume that the decision was received within five
(5) calendar days of the date on which it was mailed, September 18,
2009. Thus, complainant and her attorney are presumed to have received
the previous decision no later than September 23, 2009. Thirty days from
that date was Friday, October 23, 2009. As evidenced by the postmark
date, complainant's attorney mailed her request on November 9, 2009,
which was beyond the 30-day time limitation period. Complainant and
her attorney did not provide a justification for extending the time
limitation period.
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0520100055
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100055