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).