05A20674
08-08-2002
Janice L. Cherry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janice L. Cherry v. United States Postal Service
05A20674
08-08-02
.
Janice L. Cherry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20674
Appeal No. 01A12024
Agency No. 4C-000-0006-99
Hearing No. 170-AO-8413X
DENIAL OF REQUEST FOR RECONSIDERATION
Janice L. Cherry (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Janice L. Cherry v. United States Postal Service, EEOC
Appeal No. 01A12024 (March 27, 2002). 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).
In her complaint, complainant alleged she was discriminated against
on the bases of race (White), sex (female) and reprisal (prior EEO
complaint activity under Title VII) when: (1) the position of EAS-21
Network Planning Specialist (NPS) Senior at the Pittsburgh General Mail
Facility was rescinded on or around August 23, 1999; (2) she was assigned
a lateral, rather than higher level detail on or around August 27, 1999;
(3) the 90-day detail to an EAS-21 NPS Senior position provided pursuant
to an EEO settlement was not extended; and (4) performance goals were
not provided to complainant during her detail to the EAS-21 NPS Senior
position. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination. The agency adopted the AJ's decision and
the Commission affirmed the agency's final action. In her request for
reconsideration, complainant maintains that the investigative and hearing
processes were inadequate<1>. She also maintains that the AJ failed
to recognize her continuing violations claim and failed to understand
that retaliation is covered under Title VII. Complainant also argues
allegations previously argued in her appeal.
After a review of 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), because complainant
failed to demonstrate that the appellate decision involved a clearly
erroneous interpretation of material fact or law when the Commission
held that all applicants were equally affected when the EAS-21 NPS
position was rescinded; prior to accepting a detail, complainant was
alerted to a mistake regarding the detail; the settlement agreement
allowed for only a 90-day detail to an EAS-21 NPS Senior position; and
the record showed that performance goals were discussed with complainant.
Additionally, we note that all of complainant's incidents were considered
as a whole and no continuing violation was found. We also find that
the AJ analyzed complainant's retaliation claim accurately in that,
complainant failed to demonstrate that she was retaliated against by
anyone with regard to the issues accepted for investigation. As such,
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A12024 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
____08-08-02______________
Date
1 EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal
of spin-off complaints, which are complaints about the processing of
existing complaints. It provides instead that complaints about the
processing of existing complaints should be referred to the agency
official responsible for complaint processing, and/or processed as part
of the original complaint. EEOC Management Directive (MD-110), Chapter 5,
(November 9, 1999).