0520070784
09-10-2007
Judy A. McDermott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 0520070784
Appeal No. 0120070109
Agency No. 66-000-0037-06
DENIAL
Complainant timely requested reconsideration of the decision in Judy
A. McDermott v. United States Postal Service, EEOC Appeal No. 0120070109
(June 28, 2007). 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).
For the following reasons, complainant's request to reconsider (RTR)
is denied.
During the relevant time, complainant worked as a Postal Inspector,
ISLE 13 for the agency's Inspection Service located in San Francisco,
California. On August 16, 2006, she filed a complaint alleging that she
was subjected to a hostile work environment based on sex and in reprisal
when:
1. the inspector-in-charge (INC) told her team leader (Sl) that her
March 27, 2006, e-mail to a postal police officer was disrespectful and
inappropriate behavior;
2. on April 4, 2006, the INC called her a "f___g b___h;" and
3. on April 5, 2006, Sl counseled her regarding the e-mail.
In a decision, dated September 5, 2006, the agency dismissed
complainant's complaint. It dismissed claim (2) for stating the same
claim raised in a prior claim, namely Agency Complaint No. 6H-000-0001-06.
29 C.F.R. �1614.107(a)(1). It further dismissed claims (1) and (3) on the
grounds that they failed to state a claim. 29 C.F.R. � 1614.107(a)(1).
On October 4, 2006, complainant filed a timely appeal of the aforesaid
decision. In EEOC Appeal No. 0120070109, the Commission affirmed the
agency's dismissal of complainant's complaint.
On July 24, 2007, complainant filed her RTR. Therein, she references
an EEO complaint filed on April 4, 2007, and asserts that the agency
has never investigated said complaint, or provided her with information
regarding the status of the complaint. She also provides documentation
she previously field with the Commission in EEOC Appeal No. 0120070109.
In a request to reconsider, a complainant is required to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or 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). "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), 9-17 (November 9, 1999).
Here, the Commission finds that complainant has failed to meet her burden
to show that the Commission's decision in EEOC Appeal No. 0120070109
involved a clearly erroneous interpretation of material fact or law,
or that the decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
Instead, the record reflects that the Commission properly affirmed the
agency's dismissal of claims (1), (2), and (3). The Commission, however,
notes that complainant asserts that the agency has failed to process
her April 4, 2007 EEO complaint. This latter claim is not part of the
present complaint, and therefore, we find that it is inappropriate for
her to raise a new claim for the first time as part of the current RTR.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004). However, to the extent that she is alleging that the
agency has failed to process her April 4, 2007 EEO complaint, the agency
is advised that it is required to process said complaint in accordance
with 29 C.F.R. � 1614.106. Specifically, the agency shall acknowledge
receipt of a complaint or an amendment to a complaint in writing and
inform the complainant of the date on which the complaint or amendment
was filed. 29 C.F.R. � 1614.106(e). Moreover, the agency is required
to take action on that complaint in accordance with 29 C.F.R. �� 1614.107
and/or .108.
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. 0120070109 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 (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
__9/10/07________________
Date
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0520070784
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070784