05a00564
03-28-2001
Rhonda G. Kern, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rhonda G. Kern v. United States Postal Service
05A00564
03-28-01
.
Rhonda G. Kern,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00564
Appeal No. 01976423
Agency No. 4F-950-1254-96
DECISION ON REQUEST TO RECONSIDER
On April 4, 2000, Rhonda G. Kern (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Rhonda G. Kern v. William J. Henderson, Postmaster General,
United States Postal Service, EEOC Appeal No. 01976423 (March 10, 2000).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation
of material fact or law; or (2) the decision will have a substantial
impact on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b). For the reasons set forth below, the complainant's request
is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration of the previous decision.
Complainant alleged that the agency discriminated against her on the bases
of race/color (white), sex, and disability (temporary on-the-job injury)
when she was terminated from her position as a Transitional Employee in
July 1996. In early July 1996, complainant was injured while delivering
mail but did not report the accident to her supervisor at the time as
is required by agency regulations. Complainant also had been counseled
on two occasions with regard to her attendance, having 80 hours of
unscheduled absences from January through July 1996. Complainant was
issued a notice terminating her appointment based on her failure to
immediately report an accident and to maintain regular attendance.
With regard to her claims based on race/color and sex, the previous
decision applied the analysis set out in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973), finding no discrimination. The decision
found that, even assuming complainant established a prima facie case,
the agency articulated legitimate, nondiscriminatory reasons for its
action terminating her, i.e., complainant failed to immediately report an
injury and to be regular in attendance. Complainant did not demonstrate,
nor does the record show, that the agency's reasons were not true or
that its actions were based on discriminatory considerations. As to her
claim based on disability, the previous decision found that she was not
a person with a disability within the meaning of the Rehabilitation Act,
in that, her injury was not more than a temporary impairment.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow, and it is not a form of second appeal. Lopez v. Department of
the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990).
In her request, complainant stated that she was unaware of the
Commission's revised regulations; that she was not seeking disability
benefits but challenging her termination; that she declined to resign,
was terminated, and was now having difficulty finding a job; and that
she had never received any discipline. None of these statements or
contentions, even if true, establish that the previous decision was in
error or undermine the ultimate finding of the previous decision that
the agency's reasons for its action were not pretextual.
CONCLUSION
After a review of the complainant's request for reconsideration,
the agency's reply thereto, the previous decision, and the entire
record, the Commission finds that the complainant's request fails
to meet any of the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the complainant's request.
The decision of the Commission in EEOC Appeal No. 01976423 (March 10,
2000) remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
__03-28-01________________
Date