0520090575
12-09-2009
Tonya K. McDonald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Tonya K. McDonald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520090575
Appeal No. 0120080519
Agency No. 1C-441-0038-07
DENIAL
Complainant timely requested reconsideration of the decision in Tonya
K. McDonald v. United States Postal Service, EEOC Appeal No. 0120080519
(June 9, 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).
In the underlying case, complainant alleged she was discriminated against
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., and section 501 of the Rehabilitation
Act of 1973 (Rehab Act), as amended, 29 U.S.C. � 791 et seq., on the
bases of race (African American), and physical disability (stroke).
Specifically, complainant alleged she was discriminated against when,
on March 15, 2007, she was made aware that her CA-1 form was not properly
processed as it contained false information.
At the conclusion of the investigation, complainant was provided with
a copy of the investigative report and notice of her right to request
a hearing before an EEOC Administrative Judge. When complainant did
not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision (FAD) pursuant to 29
C.F.R. � 1614.110(b) finding that complainant failed to prove that she was
subject to discrimination as alleged. Specifically, the agency initially
found that complainant failed to state a claim as the proper forum for
her to raise these issues is with Office of Worker's Compensation Program
(OWCP). The FAD nevertheless proceeded to address the merits of the case,
finding that complainant failed to establish a prima facie case of race
discrimination or discrimination based on a physical disability.
In her request for reconsideration, complainant argues that the
Commission's decision contains clearly erroneous interpretation of
material fact or law. In support of this contention, complainant
provides a witness affidavit which reiterates her argument on appeal,
that complainant left work on September 5, 2006 for reasons related
to a stroke not high blood pressure. Complainant is reminded 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), 9-17 (November 9, 1999). Because complainant has not put
forth any arguments or contentions that were not previously considered in
rendering the underlying decision, the Commission finds that complainant
did not demonstrate that the underlying decision involved a clearly
erroneous interpretation of material fact or law.
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. 0120080519 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
December 9, 2009
Date
2
0520090575
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090575