0520070944
10-25-2007
Carmen Hobbs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area Office), Agency.
Carmen Hobbs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area Office),
Agency.
Request No. 0520070944
Appeal No. 0120072470
Agency No. 1E801012505
Hearing No. 541-2006-00105X
DENIAL
Complainant timely requested reconsideration of the decision in Carmen
Hobbs v. United States Postal Service, EEOC Appeal No. 0120072470 (August
16, 2007). 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).
Complainant alleged that the agency discriminated against her on the bases
of national origin (Hispanic), sex (female), disability (Epicondylitis,
Tendonitis in both arms, Sicca Syndrome and Fibromyalgia Syndrome), and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when: (1) on August 8, 2005, she was immediately placed
in a non-duty, non-pay status; (2) on November 9, 2005, she was assigned
work which violated her medical restrictions; and (3) on November 11,
2005, she was denied permission to leave early for a family emergency.
The Administrative Judge (AJ) issued a summary judgment decision finding
no discrimination. Specifically, the AJ found that complainant failed to
establish a prima facie case of national origin or gender discrimination
with respect to all claims because she failed to identify similarly
situated individuals outside of her protected groups who were treated
more favorably and failed to present any evidence indicating that she
was discriminated against. The AJ also found that complainant failed to
establish a prima facie case of disability discrimination because she
did not demonstrate that her impairments substantially limited one or
more major life activities.1
Further, with respect to complainant's assertion that she was required
to work in the Colorado Priority Office (CPO) in violation of her
restrictions the AJ indicated that there was no evidence proffered to
show complainant, who worked in the CPO for an hour, told management
that her restrictions were being violated or that she was required to
continue working after she told management officials that her hands
hurt. Additionally, the AJ found that complainant failed to establish
a prima facie case of reprisal. The agency's final order implemented
the AJ's finding of no discrimination.
Pursuant to complainant's appeal, the Commission affirmed the agency's
final order. The Commission found that even if complainant established
a prima facie case of discrimination as to her stated bases, the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely
that complainant was placed off duty because of her disruptive behavior
and her refusal to follow a supervisor's instructions; complainant was
sent to the CPO with coworkers not of her protected bases and she did not
inform her supervisor that the work exceeded her medical restrictions;
and finally she was not allowed to leave early due to office priorities.
In her request for reconsideration, complainant reiterates and adds
clarification to arguments previously made; namely, that she was
the victim of race, sex and disability discrimination as well as
retaliation, and that the Commission's decision contained a clearly
erroneous interpretation of material fact and law. Having reviewed our
earlier decision and complainant's arguments, we find it appropriate
to deny the request as it fails to meet the criteria of 29 C.F.R. �
1614.405(b). We note that complainant simply revives arguments
that we already considered for our prior decision, and she has not
indicated how we erroneously applied the facts and law in this case. It
therefore appears that complainant's intention in filing this request
for reconsideration is to have our office review the matter on appeal a
second time. Our Management Directive prohibits such action: a "request
for reconsideration is not a second appeal to the Commission." Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at
9-17 (rev. Nov. 9, 1999). The Commission only grants reconsideration
in the two very narrow circumstances listed above. As complainant
has not shown how our interpretation of the material facts or law was
clearly erroneous, the decision in EEOC Appeal No. 0120072174 remains the
Commission's final 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 (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
___10/25/07_______________
Date
1 The AJ, however, indicated that, assuming arguendo, it could be found
that complainant was an individual with a disability she did not show
beyond her own assertions that the agency's actions were in any way
related to her impairments.
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0520070944
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070944