0520110693
12-20-2012
Jean L. Bell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Jean L. Bell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520110693
Appeal No. 0120101348
Agency No. 4G-730-0094-07
DENIAL
Complainant timely requested reconsideration of the decision in Jean L. Bell v. Unite States Postal Service, EEOC Appeal No. 0120101348 (July 27, 2011). 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).
On November 1, 2007, Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination and harassment on the bases of age (47 years old), sex (female), and in reprisal for prior EEO activity when: 1) the Agency assigned her to Hominy, Oklahoma; 2) Complainant's supervisor refused to adjust her route in Norman, Oklahoma; 3) the Hominy Postmaster questioned Complainant in her office regarding an incident in which she allegedly asked a co-worker to lie for her and threatened Complainant with discipline; and 4) Complainant's Office of Workers' Compensation Programs (OWCP) benefits were controverted.
In a final decision dated January 13, 2010, the Agency found that Complainant failed to prove that she was subjected to unlawful discrimination or harassment. The Commission affirmed the Agency's final decision on appeal.
In her request for reconsideration, Complainant reiterates her claims and submits copies of statements by two former co-workers who claim that management subjected Complainant to a hostile work environment. Complainant maintains that the co-workers' statements are "new evidence" that support her claims, and the witnesses did not come forward until they retired from the Agency because they feared that they would face retaliation if they supported Complainant.
We note 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision 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.
Complainant has not done so here. In her request for reconsideration, Complainant submits statements from two former co-workers that were not a part of the record in this case. As a general rule, no new evidence will be considered on appeal or thereafter unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. EEO Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9 � VI.A.3 (Nov. 9, 1999). Complainant maintains that the two former co-workers did not come forward until they retired because they feared reprisal. However, fear of reprisal is not a basis upon which the Commission will excuse late action. See, e.g., Macicek v. Dep't of Education, EEOC Appeal No. 0120071920 (Oct. 20, 2008). Therefore, the Commission declines to consider the additional witness statements that Complainant submitted with her reconsideration request. As such, Complainant failed to show that our previous decision erred when it found that she failed to prove that the Agency subjected her to unlawful discrimination or harassment.
Consequently, after reviewing 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. 0120101348 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
December 20, 2012
Date
2
0520110693
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110693