05a00615
02-28-2001
Annie L. Herling v. United States Postal Service
05A00615
02-28-01
.
Annie L. Herling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00615
Appeal No. 01986405
Agency No. 4J-604-0071-97
DECISION ON REQUEST TO RECONSIDER
On April 12, 2000, Annie L. Herling (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Annie L. Herling v. William J. Henderson,
Postmaster General, United States Postal Service, EEOC Appeal No. 01986405
(March 15, 2000). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved a clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation
of the agency. 29 C.F.R. � 1614.405(b).<1> For the reasons set forth
below, the complainant's request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration.
Complainant filed her formal complaint on March 27, 1997, alleging
discrimination on the bases of sex and national origin (Hispanic) when she
was not selected for the position of Supervisor, Distribution Operations,
in January 1997. After an investigation,<2> complainant requested a
final decision, and the agency found no discrimination. According to
the record before us, the agency posted a vacancy announcement for the
position at issue but canceled the posting and filled the position
by lateral reassignment. Complainant and all other applicants were
notified of the agency's action. The previous decision affirmed the
agency's decision, finding that the record did not establish that the
agency discriminated against complainant.
Complainant has filed a request for reconsideration in which she states
her disagreement with the previous decision.<3> The agency filed
comments arguing that complainant's request does not meet the criteria
for reconsideration.
In order to merit the reconsideration of a prior Commission 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.
A request for review is not a second opportunity for appeal, and the
Commission's scope of review on a request for reconsideration is narrow.
Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990).
We find that complainant's request does not meet the criteria for
reconsideration of the previous decision, in that, complainant did
not provide any argument beyond her mere statement of disagreement
with the previous decision or show legal error in the prior decision.
Our regulations require that complainant demonstrate legal error of a
material fact or law or that the decision substantially impacts on the
policies, practices or operation of the agency. 29 C.F.R. � 1614.405(b).
Further, our review of the entire record does not indicate that the
previous decision was in error.<4>
CONCLUSION
After a review of the complainant's request for reconsideration,
the agency's reply thereto, the previous decision, and the entire
record, the Commission finds that the complainant's request fails
to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the complainant's request.
The decision of the Commission in EEOC Appeal No. 01986405 (March 15,
2000) remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
____02-28-01______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that complainant failed to provide an investigatory affidavit
or other information or documentation to the investigator.
3Complainant also references exhibits to her request but none were
attached thereto.
4According to Commission records, complainant has filed many complainants
of discrimination and appeals to the Commission. At present,
pending before the Commission are seven appeals, involving at least
ten complaints and six requests for reconsideration. In addition, the
Commission has closed 60 matters filed by complainant. The Commission
reminds complainant that it has inherent power to protect its process
and that the Commission's regulations provide for sanctions for misuse
of the EEO process. 29 C.F.R. � 1614.107(a)(9). See Buren v. USPS,
EEOC Request No. 05850297 (November 18, 1985); Hooks v. USPS, EEOC
Appeal No. 01953852 (November 28, 1995); Kessinger v. USPS, EEOC Request
No. 05970408 (May 30,
1997).