05a00839_05a00840
03-02-2001
Terry Y. Tolbert, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Terry Y. Tolbert v. United States Postal Service
05A00840; 05A00839
03-02-01
.
Terry Y. Tolbert,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request Nos. 05A00840; 05A00839
Appeal Nos. 01991156; 01990306
Agency Nos. 4J-481-0170-97; 4J-481-0136-97
DECISION ON REQUEST TO RECONSIDER
On May 26, 2000, Terry Y. Tolbert (complainant) timely initiated requests
to the Equal Employment Opportunity Commission to reconsider the decisions
in Terry Y. Tolbert v. William J. Henderson, Postmaster General,
United States Postal Service, EEOC Appeal Nos. 01991156 and 01990306
(April 26, 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 requests are denied.
The issue presented is whether complainant's requests meet the criteria
for reconsideration of the previous decisions.
Complainant filed two formal complaints in September 1997, alleging
discrimination based on race (black), sex, and age (DOB 2-4-47).
Following investigations, she requested final agency decisions (FADs).
The agency issued FADs in October 1998, finding that it did not
discriminate against complainant. The previous decision affirmed the
FADs.
In her complaints, complainant claimed that (a) she was given job
discussions for unauthorized overtime, (b) she was forced to work
overtime, (c) her route was revised and increased, and (d) she
was subject to undue harassment when her mail was counted, she was
spied on, and she was sent for a fitness-for-duty examination (FFD).
With regard to (a)-(c), the previous decision found that the agency
articulated legitimate, nondiscriminatory reasons for its actions, in
that, the agency stated that it had no record of any discussions given to
complainant, complainant worked overtime to finish her route and was not
coerced to do so, and all routes were adjusted to eight hours following
normal procedures for modification of routes. As to (d), the previous
decision determined that the incidents complained of were not sufficiently
pervasive or severe to adversely affect her working conditions.
Complainant filed requests that the Commission reconsider the previous
decisions. She stated that her personal diary reflected a discussion on
May 2, 1997, that she received a higher number of additional deliveries
when routes were revised, that management manipulated data to give her
an overburdened route, and that she was harassed in order to force her
out of the agency. In support, she submitted portions of the collective
bargaining agreement and documents related to the grievance process.
The agency submitted comments contending that complainant's requests do
not meet the criteria for reconsideration.
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 the McDonnell Douglas scheme, once the agency articulated legitimate,
nondiscriminatory reasons for its actions, the ultimate burden of
persuasion returns to the complainant to demonstrate by preponderant
evidence that the reasons given by the agency for its actions are
pretextual or a sham or disguise for discrimination. The complainant
must show that the agency's actions were more likely than not motivated
by discrimination, that is, that the actions were influenced by legally
impermissible criteria, i.e., race, sex, and age. Absent a showing
that the agency's articulated reason was used as a tool to discriminate
against her, complainant cannot prevail.
After a review of complainant's requests and the entire record, we find
that complainant has not submitted sufficient evidence to demonstrate
pretext. Further, complainant has not shown that the incidents of which
she complained were sufficiently pervasive or severe as to constitute
illegal harassment.
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 Nos. 01991156 and 01990306 (April 26, 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
____03-02-01______________
Date