05a50739
08-03-2006
Linda F. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Linda F. Wright v. United States Postal Service
05A50739
8-3-06
.
Linda F. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50739
Appeal No. 01A45605
Agency No. 4G-700-0043-04
DECISION ON REQUEST FOR RECONSIDERATION
Linda F. Wright (complainant) requested reconsideration of the decision in
Linda F. Wright v. United States Postal Service, EEOC Appeal No. 01A45605
(December 22, 2004). 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).
After reconsidering the previous decision and the entire record,
the Commission finds that the request does not meet the criteria of
29 C.F.R. � 1614.405(b), but based upon the Commission's own motion,
it is the decision of the Commission to grant the request.
BACKGROUND
In the appellate decision, complainant alleged discrimination based on
race (Black), color (Black), sex (female), age (D.O.B.: 01/28/61) and
retaliation (prior EEO activity) when: (1) on November 26, 2003, she was
instructed to perform the duties of a clerk and was not issued higher
level pay; (2) on November 29, 2003, her Supervisor made her perform
unsafe acts, and, on December 1, 2003, she reported it to the Supervisor
in Safety and Personnel; and (3) on December 24, 2003, she was told that
she would not be offered reinstatement and that her last day would be
December 31, 2003, and her Supervisor refused her an exit review.
Based on the information that the Commission had been provided, the
Commission found that issues (2) and (3) of complainant's complaint
were encompassed in a civil action that had been filed on July 7, 2004,
(identified as Civil Action No. 04CU460-B-M1) in the United States
District Court of the Middle District of Louisiana. Based on the record,
the Commission dismissed issues (2) and (3) and remanded issue (1)
to the agency for further processing.<1> EEOC Appeal No. 01A45605.
In her request for reconsideration, complainant claims that her civil
action was dismissed without prejudice on November 12, 2004, which was
prior to the issuance of the Commission's decision. Complainant maintains
that she made the agency aware of the dismissal of her civil action.
Yet, when she attempted to confirm that the agency had the information
regarding the dismissal, she was repeatedly told by agency officials that
parts of her file were lost or missing. Complainant indicates that she
feared that this information had not been forwarded to the Commission so
she forwarded the information to the Commission but the notice regarding
the dismissal of her civil action was misdirected.
ANALYSIS
After a review of complainant's request for reconsideration, and the
entire record, the Commission finds that it did not err in affirming
the agency's dismissal of issues (2) and (3) based on the appellate
record which was then before it. Furthermore, we find that there is no
evidence that the previous decision will result in a substantial impact
on the policies, practices or operations of the agency. Accordingly,
we conclude that complainant's 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.
Notwithstanding the above determination, however, and in light of the
subsequent notice of the dismissal of the civil action, and in the
interest of the efficient administration of justice, we will reconsider
the previous decision on our own motion. The Commission finds that
the evidence demonstrates that complainant's civil action was dismissed
without prejudice prior to the Commission's decision. Accordingly, the
Commission reverses in part, its previous decision and finds that issues
(2) and (3) should be remanded to the agency for further processing.
We also note that based on copies of certified mail receipts, that more
likely than not, the agency received notice of the dismissal of the
civil action before it issued its FAD.
CONCLUSION
After reconsidering the previous decision, and the entire record, the
Commission finds that complainant's request failed to meet the criteria
of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission
to deny complainant's request. In reconsidering the previous decision,
on our own motion, for the reasons set forth above, we REVERSE in Part
the decision of the Commission in Appeal No. 01A45605.<2> There is no
further right of administrative appeal on the decision of the Commission
on a Request to Reconsider.
ORDER
The agency is ordered to process issues (2) and (3) in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
___8-3-06_______________
Date
1 In EEOC Appeal No. 01A54193 (December 22, 2005), the Commission
affirmed the agency's final agency decision, finding no discrimination
as to issue (1).
2 In Appeal No. 01A45605, the Commission remanded issue (1) to the agency
for further processing, and this part of the Commission's Decision is
affirmed. The Commission notes that the agency has investigated issue
(1) and has issued a FAD on that matter. The merits of the FAD will be
addressed under appeal number 01A54193.