CHARLOTTE MORROW, COMPLAINANT,
v.
JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (SOUTHEAST AREA), AGENCY.
Request No. 0520100159
Appeal No. 0720070058
Hearing No. 150-2005-00695X
Agency No. 4H-327-0042-05
 
DENIAL
 
Complainant timely requested reconsideration of the decision in Charlotte Morrow v. U.S. Postal Service, EEOC Appeal No. 0720070058 (November 13, 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 appellate decision, the Commission affirmed the decision of the Administrative Judge (AJ), who found that the agency discriminated against complainant in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., when it required her, pursuant to her request for a transfer, to undergo a second fitness-for-duty examination notwithstanding that she had been cleared for duty after the first examination. The Commission therefore modified the final agency order, directing the agency to provide relief ordered by the AJ.
 
Complainant, though counsel, filed a request for reconsideration on the basis that the appellate decision erroneously stated that complainant had not filed a brief in opposition to the agency's appeal, when in fact she had. Complainant requests that the appellate decision be modified to reflect that a brief was submitted.
 
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. Complainant's request neither identifies a clearly erroneous interpretation of material fact or law, nor establishes that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. The decision in EEOC Appeal No. 0720070058 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
  
ORDER
 
Within sixty (60) days of the date this decision becomes final, and to the extent that it has not already done so, the agency is ORDERED to take the following remedial action:
(1) provide complainant a back pay award for approximately 450 hours, with interest, benefits, overtime, and night pay differential;
 
 (2) change the ERMS report so that complainant's AWOL is reflected as LWOP for pay periods 1 through and including 7 of the year 2005;
 
(3) expunge from complainant's official and unofficial personnel files the January 25, 2005 Notice to Return to Duty as well as any and all references to and copies of the Investigative Memorandum prepared by Postal Inspectors and date February 3, 2006;
 
(4) provide complainant non-pecuniary compensatory damages in the sum of $5,000.00;
 
(5) pay $5,928.10 in attorney's fees and $76.02 in costs;
 
(6) provide a minimum of sixteen (16) hours EEO training, with a minimum of eight (8) hours on the Rehabilitation Act and managers responsibilities under the Act, particularly with respect to appropriate medical inquiries; and
 
(7) consider taking disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
 
 
The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
  
POSTING ORDER (G0900)
 
The agency is ordered to post at its West Melbourne Branch, West Melbourne, Florida facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
  
ATTORNEY'S FEES (H0900)
 
If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501.
  
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
 
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
  
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

May 28, 2010