0520130196
05-17-2013
Margaret A. Gibbs, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Margaret A. Gibbs,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520130196
Appeal No. 0120122208
Hearing No. 443-2010-000116X
Agency No. 4J600009409
DENIAL
Complainant timely requested reconsideration of the decision in Margaret A. Gibbs v. U.S. Postal Service, EEOC Appeal No. 0120122208 (November 20, 2012). 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).
In her request for reconsideration, Complainant takes issue with the previous decision affirming the Agency's final order with respect to her 4th allegation of discrimination. Complainant did not contest the determinations concerning allegations (1) - (3). With regard to allegation (4), Complainant alleged discrimination based on disability and reprisal regarding a manager's comment that EEO's were frivolous. The previous decision, noting the finding of an EEOC Administrative Judge (AJ) after a hearing that the single comment at issue, given the context in which it arose, was insufficient to result in a finding of discrimination, affirmed the finding of no discrimination.1 In her request, Complainant, contrary to the AJ's findings, maintains that the context in which the statement was made indicates that the manager was "bragging" and maintaining that EEOs in general were frivolous.2
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. We remind Complainant 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. 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. Here, we find no evidence that Complainant has met the criteria for reconsideration. Whether the manger's comments were a reflection of his specific opinion about Complainant's prior EEO complaints, which he found to be frivolous because a claim was determined to be baseless, or was an indication of his opinion of the EEO process in general, we do not find that the previous decision clearly erred by agreeing with the AJ's conclusion that, given the overall context, this was not a situation where the manager was making any kind of threatening or harassing comment and therefore this matter did not rise to the level of discriminatory conduct. The decision in EEOC Appeal No. 0120122208 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
__5/17/13________________
Date
1 The AJ found that the comments were expressed in the course of a discussion during which Complainant stated that she would file another complaint and in light of the manager's knowledge that Complainant's prior complaint included an allegation against another supervisor (S1) that was determined to be unfounded because the alleged incident occurred on a day when S1 was on leave.
2 Complainant's Union Steward, who was present, testified in support of Complainant's interpretation that the comments were reflective of a general opinion about the EEO process.
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0520130196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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