0520090621
12-10-2009
Brenda J. Mackey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Brenda J. Mackey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520090621
Appeal No. 0120080302
Agency No. 4J-630-0109-05
DENIAL
Complainant timely requested reconsideration of the decision in Brenda
J. Mackey v. United States Postal Service, EEOC Appeal No. 0120080302
(June 26, 2009). 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 the underlying case, complainant alleged she was discriminated
against in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
on the bases of race (African American), color (Black), sex (Female),
and age (48 years old at the time of incident) when she was issued a
Notice of Separation During Probationary Period dated July 19, 2005,
to be effective July 20, 2005. The agency issued a final decision (FAD)
pursuant to 29 C.F.R. � 1614.110(b) finding that complainant failed to
prove that she was subject to discrimination as alleged. Specifically,
the agency found that complainant failed to establish a prima facie
case of race, color, sex, or age discrimination and that she failed to
establish that the agency's legitimate, nondiscriminatory reasons for
her removal were a pretext for unlawful discrimination.
In her request for reconsideration, complainant argues that the
Commission's decision contains clearly erroneous interpretation of
material fact or law. In support of this contention, complainant states
that she never withdrew her request for a hearing and was therefore not
granted a hearing in error. Complainant further reiterates the argument
she raised on appeal refuting the agency's reasons for removal and argues
that she was never provided with adequate training. Complainant is
reminded that a "request for reconsideration is not a second appeal
to the Commission." Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), 9-17 (November 9, 1999). Because
complainant has not put forth any arguments or contentions that were not
previously considered in rendering the underlying decision, the Commission
finds that complainant did not demonstrate that the underlying decision
involved a clearly erroneous interpretation of material fact or law.
After reconsidering 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. 0120080302 remains the
Commission's decision. 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 (P0408)
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 (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
December 10, 2009
Date
2
0520090621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090621