0520110674
02-10-2012
Thary Chheang, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Thary Chheang,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520110674
Appeal No. 0120101490
Hearing No. 460-2008-00172X
Agency No. 1G-771-0011-08
DENIAL
Complainant timely requested reconsideration of the decision in Thary
Chheang v. U.S. Postal Service, EEOC Appeal No. 0120101490 (July
15, 2011). 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).
Our previous decision found that the EEOC Administrative Judge properly
issued a decision without a hearing in favor of the Agency, and that
Complainant failed to establish that the Agency discriminated against
her on the bases of race, sex, and disability when her reporting time was
changed from 3:00 p.m. to 6:00 p.m. We noted that the Agency articulated
legitimate, nondiscriminatory reasons for its actions; namely, that
there was no work available for her within her restrictions at 3:00
p.m. that would not violate the collective bargaining agreement between
the Agency and its various unions. We noted that Complainant, a Mail
Processing Clerk, was performing Mail Handler duties, and the union had
threatened to file a grievance over the matter, alleging a violation
of the collective bargaining agreement. We also found that Complainant
failed to establish that she was denied reasonable accommodation for her
disability when her reporting time was changed. We noted that Complainant
presented no evidence that her accommodation was ineffective.
In her request for reconsideration, Complainant, in pertinent part,
contends that the Manager of Distribution Operations changed only her
reporting time and no other employee. Complainant contends that another
employee’s reporting time was changed only after she filed an EEO
complaint. Complainant also references another employee whose reporting
time was not changed.
Despite Complainant’s contentions, the record reflects that at least
four other employees outside of Complainant’s protected classes also
had their schedules changed in December 2007. We note that Complainant
does not dispute that she was performing Mail Handler duties when she
reported at 3:00 p.m.
We remind Complainant that a request for reconsideration is not a
second form of appeal. See Lopez v. Dep't of Agriculture, EEOC Request
No. 0520070736 (Aug. 20, 2007); EEO Management Directive for Part 1614
(EEO MD-110), Chap. 9, §VII.A. (Nov. 9, 1999). Rather, it is an
opportunity for Complainant to demonstrate that the previous decision
contained a clear error of material fact or law.
After reviewing 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. 0120101490 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 (P0610)
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 (Z0610)
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
February 10, 2012
Date
2
0520110674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110674