05a51158
10-19-2005
Cecilia T. Durinzi, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cecilia T. Durinzi v. United States Postal Service
05A51158
10-19-05
.
Cecilia T. Durinzi,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A51158
Appeal No. 01A41946
Agency No. 1C-191-0197-97
DECISION ON REQUEST TO RECONSIDER
On August 22, 2005, the United States Postal Service (agency) timely
initiated a request to the Equal Employment Opportunity Commission
to reconsider the decision in Cecilia T. Durinzi v. John E. Potter,
Postmaster General, United States Postal Service, EEOC Appeal No. 01A41946
(July 28, 2005). EEOC regulations provide that the Commission may,
in its 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).
The previous decision modified the compensatory damages award given by
the agency in its final agency decision (FAD) by awarding $1,085.10, for
pecuniary damages (an increase of $73.15) and $120,000, in non-pecuniary
damages (an increase of $110,000).<1> The agency has filed a request
that the Commission reconsider its previous decision, arguing that there
was no evidence that one medical condition was exacerbated, that there
was limited evidence to support the higher amount, that the decision
would have substantial implications, and that three cases supported its
original award of $10,000.
In order to merit the reconsideration of a prior 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. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
The previous decision reviewed the record and, based on the facts and
legal issues involved, determined that a more appropriate non-pecuniary
compensatory damages award was $120,000. The Commission disagrees
with the agency's emphasis on complainant's physical condition and her
early statements in the record. With regard to the three cases cited by
the agency, in our view, none are relevant to complainant's situation,
involving different issues and more limited situations. One case had no
finding of discrimination, arising out of a settlement agreement; another
award was limited because most of the harm arose from the processing of
the EEO complainant and not the discriminatory act; and the third one
concerned a discrete event rather than a matter lasting for many years.
In making the award herein, the Commission considered the nature and
severity of the agency's action, the actual duration of the harm, and
the portion of the harm caused by the agency's discriminatory actions.
We find that the award of $120,000 was proper and consistent with our
case law.
After a review of the 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. 01A41946 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration. The agency is directed
to comply with the Order, repeated below.
ORDER
The agency is ordered to take the following remedial actions:
(1) The agency shall, within sixty (60) days of the date on which this
decision is issued, tender to complainant non-pecuniary damages in the
amount of $120,000.00.
(2) The agency shall, within sixty (60) days of the date on which
this decision is issued, tender to complainant an additional payment of
$1,085.10 in pecuniary damages.
(3) The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
____10-19-05______________
Date
1In EEOC Appeal No. 01A11800 (July 18, 2003), the Commission found that
the agency discriminated against complainant and denied her a reasonable
accommodation when it refused to modify her duty hours.