05980043
03-29-2001
Deborah M. Applin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Deborah M. Applin v. United States Postal Service
05980043
March 29, 2001
.
Deborah M. Applin,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05980043
Appeal No. 01966654
Agency No. 4-G-770-1454-96
DECISION ON REQUEST FOR RECONSIDERATION
On October 7, 1997, Deborah M. Applin (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Deborah M. Applin v. United States
Postal Service, EEOC Appeal No. 01966654 (September 19, 1997).<1> EEOC
regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b). For the reasons set forth below, complainant's request is
granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed the
agency's dismissal of the complaint at hand for failure to state a claim.
BACKGROUND
Complainant filed an EEO complaint on September 3, 1996, alleging
that she had been discriminated against on the basis of disability
(unspecified) when on June 12, 1996, an EEOC Administrative Judge
(AJ) refused to hear an additional basis of disability as related to
her claim of harassment and informed her to refile the issue with the
EEO office. The agency dismissed the complaint for failure to state a
claim noting that complainant's claim of discrimination concerns the
processing of a previous complaint. The previous decision affirmed
the agency's dismissal noting that the gravamen of complainant's appeal
was a sweeping and detailed attack on the hearing process, the agency's
investigation, and other sections of the EEO process. Accordingly, the
previous decision found that complainant's claim was properly dismissed
as it is an impermissible collateral attack on the EEO process.
In her Request to Reconsider (RTR), complainant argues that she relied
on the AJ's instructions to refile her claim of harassment based on
disability after the AJ refused to discuss the new basis as part of her
prior EEO complaint.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is not merely a form of a second appeal.
Regensberg v. United States Postal Service, EEOC Request No. 05900850
(September 7, 1990).
Under 29 C.F.R. � 1614.107(a)(8), an agency shall dismiss an entire
complaint that alleges dissatisfaction with the processing of a
previously filed complaint.<2> In the present case, the Commission
finds that, in her formal complaint, complainant clearly raises claims
pertaining to the processing of her prior EEO complaint. Therefore,
under the Commission's regulations, the agency is required to dismiss
complainant's claims of improper processing. When claims of improper
processing are raised, the complainant should be referred to the
agency official responsible for the quality of complaints processing,
and the agency should earnestly attempt to resolve any dissatisfaction
with the complaints process as early and expeditiously as possible.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 5-25 (November 9, 1999). Complainant is therefore advised
to contact an official in the agency's EEO office, if she believes that
any complaint has been improperly processed.
After a careful review of the record, the Commission finds that
complainant's request for reconsideration does meet the regulatory
criteria of 29 C.F.R. � 1614.405(b). We find that complainant has shown
that the previous decision erroneously viewed complainant's claim solely
as a collateral attack on the EEO hearing. The record indicates that
during a hearing on her prior EEO complaint, the AJ refused to hear
complainant's claim of harassment based on disability and informed
her that if she wanted to have her disability-based harassment claim
investigated, she would have to file a new complaint. Upon review
of the record, it appears that the formal complaint at issue is
complainant's attempt to file her claim of disability harassment based
on the AJ's instruction. In particular, the Commission notes that,
in her complaint, complainant states that based on the AJ's refusal to
hear the additional basis, complainant was told to refile her complaint
of harassment on the basis of disability. Further, complainant seeks
as relief the processing of her complaint on the basis of disability,
back pay wages, reinstatement into a �204B job,� compensatory damages,
and discipline for responsible officials. Therefore, the Commission
finds that complainant filed this complaint based on the AJ's direction
in order to have her claim of harassment based on disability investigated.
Accordingly, the Commission remands this claim for investigation pursuant
to the ORDER below.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request does meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to grant the request. The decision of
the Commission in Appeal No. 01966654 is affirmed in part and reversed
in part. This is the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 29, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Although there was no specific provision in the regulations requiring
agencies to dismiss spin-off complaints prior to the November 9th
revisions, there was no provision in either the regulations or the
management directive permitting the filing of a separate complaint on
this issue. See 64 Fed. Reg. 37,644, 37,645 (1999).