Terry Corley, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 5, 2000
05a00159 (E.E.O.C. Dec. 5, 2000)

05a00159

12-05-2000

Terry Corley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Terry Corley v. United States Postal Service

05A00159

December 5, 2000

.

Terry Corley,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Request No. 05A00159

Appeal No. 01981400

Agency No. 4-J-460-1072-94

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Terry Corley

v. United States Postal Service, EEOC Appeal No. 01981400 (September

20, 1999).<1> EEOC Regulations provide that the Commission may, in

its discretion, 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).

As a preliminary matter the Commission will address the agency's

contention that complainant's request to reconsider is untimely. Pursuant

to 29 C.F.R. � 1614.405(b) a party may request reconsideration within 30

days of receipt of a decision of the Commission. We note that while the

original decision issued by the Commission is dated September 20, 1999,

the Commission also issued an Errata decision on October 1, 1999, in

order to correct an inadvertent error in the original decision. Hence,

for purposes of considering the timeliness of complainant's request,

October 1, 1999 is the relevant date. The Commission's records show

that the complainant received the Errata decision on October 7, 1999.

Accordingly, complainant's request to reconsider, dated November 5,

1999, was made within the requisite time frame and is timely.

Nevertheless, after a review of the complainant's request for

reconsideration, 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 note that in complainant's request to reconsider she

claims, among other things, that in the past other employees that were

designated for removal for submitting fraudulent medical documentation

were permitted to remain with the agency under last chance agreements.

While complainant submitted documentation concerning the proposed

removal of two other employees in 1986 and 1987, and their subsequent

retention under last chance agreements, she failed to show that she was

similarly situated to the previous individuals. In order for two or more

employees to be considered similarly situated, all relevant aspects of

the employees' work situation must be identical or nearly identical.

Godby v. Department of the Treasury, EEOC Request No. 05960220 (May

7, 1998) (citing Smith v. Monsanto Chemical Co., 770 F.2d 719, 723

(8th Cir. 1985). Thus, in order to be similarly situated, comparative

employees must have reported to the same supervisor, been subjected to

the same standards governing discipline, and engaged in conduct similar

to complainant's without differentiating or mitigating circumstances.

Jones v. Department of the Interior, EEOC Request No. 05950175 (June

7, 1996) (citing Mazzella v. RCA Global Communications Inc., 642

F. Supp. 1531 (S.D.N.Y. 1986), aff'd, 814 F.2d 653 (2nd Cir. 1987).

In the instant matter, complainant failed to show that all relevant

aspects of her work situation were identical or nearly identical to that

of her alleged comparison employees. In particular, complainant was

under the oversight of an entirely different supervisor. Accordingly,

the decision in EEOC Appeal No. 01981400 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this 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

December 5, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.