Virginia Y. Morata, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 6, 2003
05A31161 (E.E.O.C. Oct. 6, 2003)

05A31161

10-06-2003

Virginia Y. Morata, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Virginia Y. Morata v. United States Postal Service

05A31161

10-06-03

.

Virginia Y. Morata,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A31161

Appeal No. 01A32861

Agency No. 4F-940-0136-00

Hearing No. 370-A1-2349

DENIAL OF REQUEST FOR RECONSIDERATION

Virginia Y. Morata (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Virginia Y. Morata v. United States Postal Service,

EEOC Appeal No. 01A32861 (July 10, 2003). 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).

This matter arose when, after successfully bidding on a job, complainant's

supervisor told complainant that she had to take a scheme test in order

to secure the job. Complainant asserted that her supervisor threatened

her with removal if complainant did not pass the test; complainant's

supervisor denied that she threatened complainant and stated that

she told complainant of the requirement to pass the scheme test.

Complainant passed the scheme test and was not removed.

This matter went forward to a hearing before an EEOC administrative judge

(AJ). While the matter was pending before the AJ, complainant asked that

she be allowed to pursue discovery. The record contains no response from

the AJ about discovery. The AJ subsequently issued a decision without

a hearing, finding no discrimination on the merits of the complaint.

The agency fully implemented the AJ's decision, and complainant timely

appealed the agency's final agency decision (FAD), arguing that the AJ's

decision should be reversed because she had not been allowed discovery

before the AJ issued his decision. On appeal, we affirmed the FAD.

In her request to reconsider, complainant again asked that the AJ be

reversed for failing to grant discovery before issuing his decision

without a hearing.

In Petty v. Department of Defense, Appeal No. 01A24206 (Jul. 11, 2003),

the Commission held that an AJ should not rule on the merits of a case

unless he ensures that the party opposing the ruling is given the chance

to engage in discovery before responding. This record is unclear about

how the AJ treated the issue of discovery: the correspondence between

the AJ and the parties does not address the issue of discovery, save for

complainant's requests to the AJ that she be allowed to begin discovery.

Notwithstanding the fact that discovery was not addressed, it appears

that this matter should have been dismissed pursuant to 29 C.F.R. �

1614.107(a)(5), because the mere threat to take a personnel action,

without more, does not amount to discrimination.<1>

After a review of complainant's request for reconsideration, 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. 01A32861 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

___10-06-03_______________

Date

1 We also note that complainant failed to

show what evidence she hoped to provide from discovery that would raise

this to a justiciable claim or otherwise demonstrate discrimination.