05a51246
11-15-2005
Judith Cariddo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Judith Cariddo v. United States Postal Service
05A51246
11-15-05
.
Judith Cariddo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A51246
Appeal No. 01A53722
Agency No. 1H-324-0020-05
DECISION ON REQUEST TO RECONSIDER
On September 6, 2005, Judith Cariddo (complainant) timely requested
reconsideration of the decision in Judith Cariddo v. John E. Potter,
Postmaster General, United States Postal Service, EEOC Appeal No. 01A53722
(August 24, 2005). EEOC regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the party demonstrates that: (1) the appellate 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 found that the agency properly dismissed
complainant's complaint for untimely EEO contact with an EEO counselor
pursuant to our regulations, 29 C.F.R. � 1614.107(a)(2). The record
shows that complainant was transferred to Tour 1 effective October 18,
2003, having received notice on September 29, 2003, and that she did
not contact an EEO counselor to challenge her transfer until February
19, 2005, over 16 months from the date she was notified of the transfer.
With regard to her untimely EEO contact, she argued that she was not aware
of the discrimination until she learned that some light and limited duty
employees remained on Tour 2.<1> The agency explained that all manual
clerks, including complainant, were changed from a start time of 19:00
hours to 21:00. The Commission's decision rejected her contention and
found that she should have reasonably suspected discrimination prior to
February 2005.
In her request, complainant contended that the previous decision
misunderstood her argument, and she repeated it in her request, re-stating
that she was unaware of any light or limited duty employees who remained
on Tour 2 and that, at the time of her transfer, was told that no light
or limited duty work was available on Tour 2. She further explained that
she was never in the building at the same time as employees on Tour 2,
so would not have known of their work assignments. The agency did not
submit comments with regard to complainant's request.
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.
In the first instance, it is difficult to understand, even allowing for
the size of the facility, that complainant was unaware of the assignments
of other employees, given that job assignments are posted in public places
easily available to her, so that constructive notice and knowledge of
assignments must be presumed. While the Commission applies a "reasonable
suspicion" standard to tardy EEO contact, such suspicion reasonably arises
when a complainant reasonably suspects discrimination but before all
the facts that support a charge of discrimination have become apparent.
Therefore, based on a review of the record, we find that complainant's
February 19, 2005, EEO contact was untimely and that complainant has
failed to provide sufficient justification for tolling or extending the
time limit for contacting an EEO Counselor. See Nichols v. Department
of Veterans Affairs, EEOC Request No. 05A40515 (August 4, 2005).
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. 01A53722 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on the decision of the Commission on this request.
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
_____11-15-05_____________
Date
1She contended that a note with this information appeared on her
representative's car. This event is not further explained, nor is there
probative evidence in support.