Robert D. Davis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 26, 1999
05970759 (E.E.O.C. Feb. 26, 1999)

05970759

02-26-1999

Robert D. Davis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert D. Davis v. United States Postal Service

05970759

Feb 26, 1999

Robert D. Davis, )

Appellant, )

)

v. ) Request No. 05970759

) Appeal No. 01963270

William J. Henderson, ) Agency No. 4-D-290-1095-95

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On May 3, 1997, Robert D. Davis, (hereinafter referred to as the

appellant) timely initiated a request to the Equal Employment Opportunity

Commission (Commission) to reconsider the decision in Robert D. Davis

v. United States Postal Service, EEOC Appeal No. 01963270 (March 31, 1997)

received on April 7, 1997. EEOC Regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission decision. 29

C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence that tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3).For the reasons set forth herein, appellant's

request is denied. However, the Commission exercises its discretion

pursuant to 29 C.F.R. �1614.407(a) to reconsider the previous decision

on its own motion.

ISSUE PRESENTED

Whether the previous decision properly affirmed the agency's final

decision, which found that portions of appellant's complaint failed

to state a claim, were moot, or stated the same claim that is pending

before or has been decided by the agency or Commission.

BACKGROUND

In a formal EEO complaint dated October 3, 1995, appellant alleged that

he was discriminated against on the bases of race (Black), sex (male)

and reprisal (prior EEO activity) when (1) he was threatened with

discipline if his job performance did not improve; (2) he was given a

Standard Operating Procedure; (3) he was given a different start tour

time than other employees; (4) he was assigned a different break time

than other employees; and (5) females were given special treatment

(incidents and dates unspecified). Appellant further asserted in his

complaint that (6) he was denied a city scheme assignment; and (7)

as a result of the discrimination, he was forced to bid off his level

5 assignment to a level 4 job. As relief for the discrimination, he

sought to be reinstated to level 5 with back pay.

In a final agency decision (FAD), the agency dismissed allegations

(1), (2), (4) and (5) for failure to state a claim, holding that

appellant failed to show that he was aggrieved by the agency's

actions. The agency also dismissed allegation (3) as identical to the

matter raised by appellant in another complaint, agency case Number

1D-291-1028-95. Alternatively, the agency dismissed allegations (1)-(5)

on mootness grounds, holding that since appellant successfully bid to

a Tour III Automation Clerk job on September 6, 1995, he was no longer

working under the alleged discriminating management officials, which had

completely eliminated all the effects of the alleged discrimination with

no reasonable expectation of recurrence.

In his appeal statement, appellant asserted that he bid off his position

to a lower grade level in order to "stop the harassment."<1> The previous

decision affirmed the FAD on mootness grounds, noting that appellant had

changed tours of duty and supervisors and had not argued on appeal that

he was entitled to other relief.

In his request for reconsideration, appellant asserted that he changed

his tour because of stress from the work environment for which he had

to seek counseling from an Employee Assistance Program Counselor. He

also claims that the assurance that the violation will not reoccur is

false in that supervisors change tours and he could also bid to another

tour. The agency has not submitted a response to appellant's request

for reconsideration.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that the

appellant's request for reconsideration fails to meet any of the criteria

of 29 C.F.R. �1614.407(c), in that the appellant has not presented new

and material evidence. Nor has appellant raised any arguments which

demonstrate error in the previous decision or a matter with substantial

precedential implications. We note that appellant's statement regarding

the stress he experienced as a result of the alleged harassment could be

interpreted to indicate an intent to claim compensatory damages in the

event that he prevails on his complaint. The Commission has held that

an agency must address the issue of compensatory damages before it can

dismiss a complaint for mootness. Lori Ann Salazar v. Dept. of Justice,

EEOC Request No. 05930316 (February 9, 1994). Since appellant failed to

articulate this harm prior to his request for reconsideration, however,

we do not find it to be a sufficient basis upon which to grant appellant's

request.

Notwithstanding our denial of appellant's request, we exercise our

discretion pursuant to 29 C.F.R. �1614.407(a) of our regulations to

reconsider the previous decision. Specifically, both the agency and

the previous decision omitted mention of appellant's characterization

of the aforementioned allegations as work environment harassment and

wholly failed to address allegations (6) and (7). If appellant were to

prevail on these allegations, he could receive city scheme assignments,

a promotion to his former grade level and a back pay award. Consequently,

it was erroneous to refer to appellant's allegations of discriminatory

harassment as "moot."<2> While we remand allegations (1)-(2) and (4)-(7)

for investigation, we observe that the record contains a copy of agency

complaint No. 1D-291-1028-95, which we observe states the same claim

as allegation (3). Therefore, we affirm the agency's rejection of that

allegation. Since this allegation appears to be an element of appellant's

harassment claim, the agency is directed, to the extent practicable,

to consolidate the claim in agency complaint No. 1D-291-1028-95, with

the instant complaint for further processing.

CONCLUSION

After a review of the appellant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c),

and it is the decision of the Commission to DENY this request. The

Commission exercises its discretion, however, pursuant to 29

C.F.R. �1614.407(a) to reconsider the decision on its own motion. The

decision of the Commission in EEOC Appeal No. 01963270 and the agency's

final decision are REVERSED in part and AFFIRMED in part. The agency is

directed to comply with the Commission's Order set forth below. There

is no further right of administrative appeal from a decision of the

Commission on a request to reconsider.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations (1)-(2)

and (4)-(7) as defined above in accordance with 29 C.F.R. �1614.108.

The agency shall acknowledge to the appellant that it has received the

remanded allegations within thirty (30) calendar days of the date this

decision becomes final. The agency shall issue to appellant a copy of

the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,

the agency shall issue a final decision within sixty (60) days of receipt

of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

Feb 26, 1999

Date

Frances M. Hart

Executive Officer

Executive Secretariat

1 In his initial request for EEO counseling, appellant referred to the

agency's actions as harassment.

2 Our review of the record, including appellant's assertions below, also

indicates that, in assessing whether one or more of these allegations

state a claim, they are more properly viewed as part of an overriding

allegation of harassment rather than as separate and distinct incidents.

In so doing, we find that when considered together, they are sufficient

to state a claim of discriminatory harassment. See Cobb v. Dept. of the

Treasury, EEOC Request No. 05970077 (March 13, 1997).