05A30081
03-04-2003
Kathleen A. Daniello, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathleen A. Daniello v. United States Postal Service
05A30081
03-04-03
.
Kathleen A. Daniello,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A30081
Appeal No. 01A04676
Agency No. 1A-118-0044-97
DENIAL OF REQUEST FOR RECONSIDERATION
Kathleen A. Daniello (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Kathleen A. Daniello v. United States Postal Service, EEOC
Appeal No. 01A04676 (September 9, 2002). EEOC Regulations provide that
the Commission may, in its discretion, 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).
Complainant filed an EEO complaint claiming that she had been
discriminated against on the basis of age (DOB: 6/26/1953) when, by letter
dated May 16, 1996, she was placed in an Absent Without Leave (AWOL)
status, effective May 10, 1997, and she was not afforded maternity leave
alternatives provided to other employees. The complaint was initially
dismissed by the agency, but that dismissal was appealed by complainant
and was reversed by the Commission in EEOC Appeal No. 01980320 (August
13, 1998) and remanded for an investigation. After complainant was
issued the report of investigation, she requested a hearing before an
Administrative Judge, however, she withdrew her request and subsequently
requested a final agency decision without a hearing. The agency issued
a final agency decision on May 8, 2000.
In its decision, the agency found that complainant had not established a
prima facie case of age discrimination, in that she had not shown that age
was a determinative factor in the agency's decision to place complainant
in AWOL status. It then found that the agency had offered legitimate,
non-discriminatory reasons for its actions which the complainant had not
shown to be pretextual. Complainant had been in a leave status since the
birth of a child in December 1996. When she did not return to work after
three months, the agency sent her a letter dated April 9, 1997, directing
that she report to duty on April 25, 1997. Complainant responded that
she would contact her supervisor to discuss her options, but she did not
do so. On May 16, 1997, she was notified by letter that she would be in
an AWOL status unless she supplied medical documentation to support her
further absence from work. The agency further contacted complainant on
June 10, 1997, and provided a copy of complainant's rights to time off
from work after the birth of a child under the Family Medical Leave Act
(FMLA). Complainant did not return to work, and the agency issued a
notice of removal in September 1997. Complainant was allowed to submit
her resignation on the basis of �personal reasons� on September 24, 1997.
The complainant claimed that other employees had been allowed to work
details or part time assignments, or were allowed more than three months
off as a part of their maternity leave, but never explained in the course
of the processing of her complaint how age discrimination was at play in
her case. The agency concluded that the complainant had not shown their
reasons to be pretextual, and it closed the complaint with a finding of
no discrimination. The agency also addressed complainant's contentions
regarding the improper and inadequate processing of her complaint,
and concluded that the agency had properly processed her claim.
The previous appeal decision affirmed the decision of the agency because
the agency correctly analyzed the case, and there was no evidence in
the record which supported a finding of discrimination. The previous
decision also considered complainant's issue in light of a possible
sex discrimination claim, since the placement of complainant in an AWOL
status was related to her maternity leave.
In her request for reconsideration, complainant made three arguments which
would support her contention that the previous decision was incorrectly
decided. Her first claim is that the Commission never responded to a
request she made in a letter dated March 28, 1999, that the Commission
enforce its order in EEOC Appeal No. 01980320. Her second argument
related to her previous claims that the agency had improperly processed
and investigated her complaint. Complainant's final argument was that
it had been incorrectly stated that Administrative Judge Nadine Koch
had been assigned to hear her case, when she was under the impression
that Administrative Judge Kenneth Chu was the AJ assigned. She argued
that incorrect documentation in her record must have contributed to
an incorrect decision on her appeal. The agency did not respond to
complainant's request for reconsideration.
With respect to complainant's arguments, we find the following. A review
of the record in relation to complainant's claim that the agency did
not comply with the Commission's order to accept and investigate her
claim reveals that the agency did comply with our order, and that the
Compliance Officer in this case properly found as much and terminated
her monitoring of the agency. Therefore, complainant's request from
March 28, 1999 is denied. Secondly, after a review of the entire case
record before us, we find that the agency properly addressed complainant's
contentions of improper processing in its FAD and correctly found that it
had complied with the EEOC regulations found at 29 C.F.R. Part 1614 and
the EEOC Management Directive 110 in the investigation of her complaint.
Further, any minor irregularities were, at most, harmless error which
did not affect the substantive outcome of the complaint. Finally, we
find that the agency correctly stated that Administrative Judge Nadine
Koch had been assigned to complainant's case. The letters submitted by
complainant in support of her argument that Administrative Judge Kenneth
Chu was the AJ assigned show that he was responding to her correspondence
in his capacity as Supervisory AJ of the New York District Office,
in order that there not be improper ex parte communications between
complainant and the AJ on her case. We further note that at no time
did complainant provide any evidence or argument designed to show that
the agency acted on the basis of her age, arguing instead that she
was entitled to more time off, and that the agency was rude in their
modes of communication. While complainant may have been under one
impression regarding her rights on maternity leave, she did not show
that the agency had any other policy than what was communicated to her,
or that she made any attempt to straighten out the misunderstanding.
The agency was fully within its rights to require that she document the
need for a maternity leave longer than allowed for by FMLA.<1>
After a review of 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. 01A04676 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this 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
___03-04-03_______________
Date
1 The Commission does not enforce the regulations implementing FMLA.