0520090527
08-12-2009
Maureen Kelly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Request No. 0520090527
Appeal No. 0120080165
Agency No. 4H-327-0072-07
DENIAL
Complainant timely requested reconsideration of the decision in Maureen
Kelly v. United States Postal Service, EEOC Appeal No. 0120080165 (May
8, 2009). 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 previous decision affirmed the agency's final decision, in which the
agency found that complainant had not been discriminated against based on
her race, national origin, color, or age when she was placed on Emergency
Placement in Off-Duty Status and subsequently issued a Notice of Removal.
Our prior decision found that the agency had articulated a legitimate,
nondiscriminatory reason for its actions, namely, that complainant had
made a threat against a co-worker, and that she had created a disturbance
on the workroom floor, which complainant did not show was a pretext for
discrimination.1
In her request for reconsideration, complainant argued that the
decision was clearly erroneous in its conclusion that the agency had a
legitimate, nondiscriminatory reason for its actions, and pointed to
the deficiencies in the agency's case when complainant's case on the
same matter was adjudicated in the grievance process.2 We find that,
despite any deficiencies which may have existed in the agency's case
within the grievance process, within the EEO context the agency has
met its burden to produce a legitimate, nondiscriminatory reason for its
actions. As complainant has not shown that these reasons were pretext for
discrimination, we conclude that the request for reconsideration must be
denied. Like the prior decision, we find no evidence that complainant's
protected bases were considered by management. According to the agency,
there was a "zero tolerance policy" towards the type of comments that
complainant was alleged to have made.
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. 0120080165 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 (P0408)
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 (Z1008)
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
_____8/12/09_____________
Date
1 An employee told management that complainant said that she would "put
a bullet in [a co-worker's] head." Further investigation indicated that
complainant was licensed to carry a concealed weapon.
2 According to complainant, she prevailed when her case went before
an arbitrator. Complainant noted, in part, that the arbitrator "[a]lso
felt that there was no intent behind the threat ) if it was made at all)
. . . ."
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0520090527
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090527