0520110049
12-10-2010
Eun S. Kim, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Eun S. Kim,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Request No. 0520110049
Appeal No. 0120102335
Agency No. 1K-209-0002-10
DENIAL
Complainant timely requested reconsideration of the decision in Eun S. Kim
v. U.S. Postal Service, EEOC Appeal No. 0120102335 (September 7, 2010).
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).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant alleged that the Agency discriminated
against her on the basis of disability when: (1) on December 6, 2008,
she was issued a Notice of Removal; and (2) on January 15, 2010,
she applied for retirement, effective February 28, 2010, in order to
avoid being terminated. The Commission affirmed the Agency's final
decision, which dismissed claim (1) for untimely EEO Counselor contact
because Complainant did not initiate contact with an EEO Counselor until
November 2, 2009 and dismissed claim (2) for failure to state a claim
because, as Complainant asserted that she was forced by the arbitrator
(who denied her grievance) to choose between removal and retirement,
it was a collateral attack on the grievance process.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant asserted that the
appellate decision involved a clearly erroneous interpretation of
material fact or law. Regarding claim (1), Complainant argued that her
EEO Counselor contact was timely because, as her removal action never
took effect, the 45 calendar days for initiating EEO Counselor contact
never should have started to run. Regarding claim (2), Complainant argued
that the arbitrator erred in denying her grievance because he ignored the
facts. In addition, Complainant asserted that the appellate decision will
have a substantial impact on the policies, practices, or operations of the
Agency because "it has been long overdue that the unjustifiable unjust
abusive policies, practices, or operations of the Agency against its
innocent and helpless craft employees had to be discontinued." Finally,
Complainant provided several "supplementary facts" about her complaint.
Regarding the EEO Poster 72 posted at the Maryland Suburban Processing
and Distribution Center, Complainant argued that she had not been at the
facility since 1994. Regarding the referenced in the appellate decision
to her prior EEO participation in Eun S. Kim v. U.S. Postal Serv.,
EEOC Appeal No. 01976902 (July 9, 1999), Complainant asserted that the
date of the decision was incorrect and that she had the assistance of an
attorney in the prior case. Complainant also noted that a civil action
filed in U.S. District Court was currently pending in the U.S. Court of
Appeals. 1
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request does not establish that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have a
substantial impact on the policies, practices, or operations of the
Agency. We remind Complainant 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 (MD-110), at Ch. 9 �
VI.A. (Nov. 9, 1999). Regarding claim (1), we note that the terms
of the Notice of Removal were never effectuated because Complainant
chose to retire from the Agency. Therefore, Complainant had 45 days
from the date of the matter alleged to be discriminatory, in this case
the issuance of the Notice of Removal on December 6, 2008, to initiate
contact with an EEO Counselor. Regarding claim (2), we reiterate the
appellate decision's finding that Complainant's dissatisfaction with the
arbitrator's decision failed to state a claim because it was a collateral
attack on the grievance process.
CONCLUSION
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. 0120102335 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 (P0610)
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 (Z0610)
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
__12/10/10________________
Date
1 On November 9, 2009, Complainant filed a civil action in the
U.S. District Court for the District of Maryland. The District Court
dismissed the complaint for lack of subject matter jurisdiction.
Kim v. Potter, Civil Action No. DKC 09-2973 (June 2, 2010).
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0520110049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110049