0520120407
09-18-2012
Martha L. Gilbert, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Martha L. Gilbert,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520120407
Appeal No. 0120112285
Agency No. 4G-770-0068-11
DENIAL
Complainant timely requested reconsideration of the decision in Martha L. Gilbert v. U.S. Postal Service, EEOC Appeal No. 0120112285 (March 13, 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).
The facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: Complainant alleged that the Agency discriminated against her in reprisal for her prior EEO activity when on November 18, 2010, she was notified to report on November 23, 2010, to discuss allegations of embezzling Agency funds and money orders. The Agency dismissed the complaint on the grounds that it failed to state a claim because Complainant was not subjected to any adverse treatment or denied any entitlement related to a term, condition or privilege of her employment.
On appeal, Complainant, among other things, maintained, for the first time, that she was disciplined as a result of the accusations. The previous decision, after determining that Complainant could not raise her claim that she had been subjected to discipline for the first time on appeal, affirmed the Agency's dismissal. According to the previous decision, Complainant did not establish that by being told to report to discuss accusations of her embezzling Agency funds and money orders she suffered a harm or loss with respect to a term, condition or privilege of employment for which there was a remedy.
In her reconsideration request, Complainant argued, in pertinent part, that "[t]he reason for me not stating a claim at the time is because I was unaware that I had already served a 7-day suspension." According to Complainant, she was told by her Union representative that he was going to try and get the suspension "thrown out." Afterward, Complainant was off work due to an injury; consequently, when she began the EEO process, she was not aware that the suspension had been served because she had not, as in the past, been "put off the clock."
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. Complainant cannot establish that the previous decision erred because she concedes that her allegation, as stated in the formal complaint, failed to state a claim. She provided an explanation, but did not establish clear error. The previous decision properly informed her that matters cannot be raised for the first time on appeal and that she should contact an EEO counselor regarding the discipline, i.e., her suspension.
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. The decision in EEOC Appeal No. 0120112285 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
__9/18/12________________
Date
2
0520120407
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120407