0520090525
08-20-2009
Concordia D. Tindal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Concordia D. Tindal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520090525
Appeal No. 0120071135
Agency No. 1F955000606
DENIAL
Complainant timely requested reconsideration of the decision in Concordia
D. Tindal v. United States Postal Service, EEOC Appeal No. 0120071135
(May 8, 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 her complaint, complainant alleged discrimination based on race
(Filipina1), disability (eyes), and in reprisal for prior EEO activity
when on January 6, 2006, she was denied reasonable accommodation and
was subjected to Absent Without Leave (AWOL) charges.
Once the agency completed the investigation of the complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On October
27, 2006, the AJ issued a decision without a hearing finding no
discrimination. The agency's final action implemented the AJ's decision.
The prior decision found that assuming, arguendo, that complainant is an
individual with a disability, she failed to establish that she was denied
an accommodation or subjected to AWOL charges due to a discriminatory
motive. Complainant alleged that she suffers from an eye condition that
requires her to use eye drops which affect her vision in the morning.
She further claims that her request to be one and a half hours late to
work was approved under the Family and Medical Leave Act (FMLA), most
recently in 2004. However, the prior decision found no dispute that,
in 2006, complainant failed to provide updated medical documentation
to support her request. The prior decision also found complainant was
provided with the option of a later start time as an accommodation,
but she declined this accommodation.
In her Request, complainant states that there was medical documentation
on file to support her accommodation request.
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. Complainant failed to establish that the prior
decision involved a clearly erroneous interpretation of material law
or fact. The record is undisputed that complainant failed to provide
medical documentation in 2006 when she was asked to provide an updated
certification. Any attendance problems complainant suffered were caused
by her failure to provide this documentation, not due to a discriminatory
or retaliatory motive. Furthermore, she declined the agency's offer of
an accommodation. The decision in EEOC Appeal No. 0120071135 remains the
Commission's final 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
August 20, 2009
Date
1 We note that under the laws enforced by EEOC, the term "Filipina"
connotes a national origin rather than a race.
??
??
??
??
2
0520090525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090525