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.