Deborah A. Scott,
Complainant,

v. 

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Request No. 0520130408

Appeal No. 0120130422

Hearing No. 490-2012-0084X

Agency No. 4C-370-0026-11

DENIAL

Complainant timely requested reconsideration of the decision in Deborah A. Scott v. U.S. Postal Service, EEOC Appeal No. 0120130422 (March 27, 2013).  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 filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (black), and reprisal for prior protected EEO activity when: (1) on May 25, 2011, the Supervisor issued her a Letter of Warning (LOW) for Unsatisfactory Performance - Driving Practices; and (2) on October 4, 2011, the Supervisor issued her a LOW for Violation of Postal Service Standards of Conduct - Discharge of Duties.  

The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's decision without a hearing finding no discrimination.  Regarding claim 1, the appellate decision found that the Agency articulated a legitimate, nondiscriminatory reason for the May 25, 2011 LOW; namely, while conducting an employee driving observation on April 29, 2011, the Safety Specialist saw Complainant use a cell phone while driving and not keep both hands on the wheel.  Regarding claim 2, the appellate decision found that the Agency articulated a legitimate, nondiscriminatory reason for the October 4, 2011 LOW; namely, on September 7, 2011, Complainant failed to properly estimate her workload when she requested 2.5 hours of overtime but returned from her delivery an hour earlier than what she had requested.  The appellate decision found that Complainant failed to prove, beyond a preponderance of the evidence, that the legitimate, nondiscriminatory reasons articulated by the Agency were a pretext for race, color, or reprisal discrimination.

In her request for reconsideration, Complainant argued that the appellate decision involved a clearly erroneous interpretation of material fact and law because it failed to address the comparative treatment evidence for claim 1 that she presented in her opposition to the Agency's motion for a decision without a hearing.  Specifically, Complainant asserted that she identified a similarly situated Caucasian employee (C1) who received more favorable treatment from the Agency.

Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.  Although the appellate decision did not address the comparative treatment evidence, Complainant failed to show that the appellate decision clearly erred in its ultimate finding of no discrimination.       

The record reflects that the AJ's decision addressed the comparative treatment evidence presented by Complainant.  Specifically, the AJ found that, while conducting an employee driving observation on April 29, 2011, the Safety Specialist saw C1 commit several infractions.  The AJ, however, found that the Safety Specialist did not see C1 use a cell phone while driving or not keep both hands on the wheel.  In addition, the AJ noted the Supervisor's testimony that he thought Complainant's infractions (cell phone use, both hands not on the wheel) were more serious than C1's infractions.  Finally, the AJ found that, other than the fact that C1 was outside of Complainant's protected groups and Complainant's subjective belief that their infractions were almost the same, there was nothing in the record from which a factfinder could reasonably conclude that discriminatory animus motivated the Supervisor's actions.

The record supports the AJ's analysis of the comparative treatment evidence.  The Safety Specialist completed a PS Form 4584, Observation of Driving Practices for Complainant and C1.  In both reports, the Safety Specialist indicated that Complainant and C1 failed to stop before a stop sign, cross walk, or stop line and failed to look left, right, and left at intersections.  In Complainant's report, the Safety Specialist also indicated that Complainant used a cell phone while driving, did not keep both hands on the wheel, and did not signal properly in advance of turns.  In C1's report, however, the Safety Specialist did not indicate that C1 committed those other infractions; in contrast, the Safety Specialist indicated that C1 did not signal exit intentions well in advance and did not adhere to the speed limit.  Although Complainant committed numerous driving infractions, the May 25, 2011 LOW specifically cited her use of a cell phone while driving and her failure to keep both hands on the wheel.  

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. 0120130422 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


____9/25/13______________
Date

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0520130408





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013



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0520130408