0520070931
10-30-2007
Yolanda Hallum, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Yolanda Hallum,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Request No. 0520070931
Appeal No. 0120072483
Hearing No. 410-2006-00297X
Agency No. 4H-300-0095-06
DENIAL
Complainant timely requested reconsideration of the decision in Yolanda
Hallum v. United States Postal Service, EEOC Appeal No. 0120072483
(September 7, 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).
In our prior decision, we affirmed the EEOC Administrative Judge's (AJ's)
post-hearing decision. We determined that that the record supported the
AJ's conclusion that complainant had not met her burden of proving by
a preponderance of the evidence her discrimination claim. Now, in her
Request for Reconsideration, complainant maintains that the AJ's decision
was incorrect. Interestingly, complainant argues that because the agency
motioned the AJ for a directed verdict, a right granted only where there
is a jury trial, the de novo standard of review that normally applies to a
review of a Decision Without Hearing applies here upon reconsideration.
As such, complainant's reconsideration brief is in essence a brief
appealing the AJ's decision. Incidentally, in our prior decision,
we noted that complainant had not submitted a timely brief in support
of her appeal. See Hallum v. United States Postal Serv., EEOC Appeal
No. 0120072483 at n.2. (Sept. 7, 2007). It is therefore evident that
complainant attempts to have us treat her request for reconsideration
as a second chance at an appeal.
Complainant however is mistaken. Our Management Directive prohibits
such action: a "request for reconsideration is not a second appeal to
the Commission." Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at 9-17 (rev. Nov. 9, 1999). We only grant
reconsideration in the two very narrow circumstances listed above.
Complainant should have presented the arguments she now presents when we
considered her appeal. As the agency notes in its Response to Request
for Reconsideration, she "had an opportunity to submit this brief as part
of her appeal to OFO, but failed to do so." As she has not shown how
our interpretation of the material facts or law was clearly erroneous,
the decision in EEOC Appeal No. 0120072483 remains the Commission's final
decision. We deny the request because it fails to meet the criteria of
29 C.F.R. � 1614.405(b). There is no further right of administrative
appeal on the decision of the Commission on this request.
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
October 30, 2007
__________________
Date
2
0520070931
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520070931