05970094
10-16-1998
Ruth Lockett, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ruth Lockett v. United States Postal Service
05970094
October 16, 1998
Ruth Lockett, )
Appellant, )
)
v. ) Request No. 05970094
) Appeal No. 01955289
William J. Henderson, ) Agency No. 4-G-770-1233-95
Postmaster General, ) 4-G-770-1264-95
United States Postal Service, ) 4-G-770-1379-95
Agency. )
______________________________ )
GRANT OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 28, 1996, the United States Postal Service (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Ruth Lockett v. United States Postal Service, EEOC Appeal No. 01955289
(October 15, 1996). 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, the agency's
request is GRANTED.
ISSUE PRESENTED
The issue presented is whether the previous decision properly remanded
complaint no. 4-G-770-1233-95 to the agency to redefine the definition
of the complaint to include the basis of religion.
BACKGROUND
By letter dated May 15, 1995, the agency notified appellant that her
three complaints regarding administrative leave, a pre-disciplinary
discussion and a letter of removal, had been consolidated for processing.
The agency listed the basis of discrimination as race, sex and reprisal.
Thereafter, appellant filed an appeal with the Commission. Appellant
did not proffer an explanation or reason for her appeal. The agency
investigated appellant's complaint and subsequently issued a final
decision finding no race, sex or reprisal discrimination.
The previous decision determined, based on a review of appellant's formal
complaints, that the agency failed to accept religion as an alleged basis
of discrimination in complaint no. 4-G-770-1233-95. The previous decision
remanded the complaint to the agency and ordered it to include religion
as an alleged basis of discrimination in complaint no. 4-G-770-1233-95.
The previous decision was received by the agency on October 18, 1996,
over a week after it issued its final agency decision.
In its request for reconsideration, the agency asserted that the
complete record, which was not available at the time appellant filed
her appeal, reveals that appellant abandoned religion as an alleged
basis of discrimination in her complaint. In support of this assertion,
the agency points to the statement appellant made, by affidavit, that
her complaint was based on race, sex and reprisal. She did not pursue
the basis of religion. Further, the agency asserted that appellant did
not, at any time, object to the agency's definition of her complaint
or the scope of the investigation. Moreover, the agency stated
that appellant did not file an appeal of the agency's final decision
finding no discrimination and did not file comments in response to the
agency's request for reconsideration. Finally, the agency asserted that
appellant's appeal to the Commission was untimely and that the previous
decision erred when it accepted the appeal.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
After a careful review of the record, the Commission finds that
the agency's request to reconsider meets the criterion of 29
C.F.R. �1614.407(c)(1), in that new and material evidence is available
that was not readily available when the previous decision was issued.
It is therefore the decision of the Commission to grant the agency's
request.
Specifically, since appellant did not specify the reason for her appeal
to the Commission, the agency did not submit the investigation file
which reflects that appellant abandoned religion as an alleged basis
of discrimination in her complaint. Further, the record supports that
appellant did not object to the agency's definition of her complaint,
the scope of its investigation, or the final agency decision finding no
discrimination in complaint no. 4-G-770-137995.
The Commission rejects the agency's argument that the appeal was untimely
because the agency did not notify appellant of her right to appeal the
agency's acceptance notice.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. �1614.407(c)(1), and it is the
decision of the Commission to GRANT its request. The decision in EEOC
Appeal No. 01955289 (October 15, 1996) is hereby REVERSED. There is no
further right of administrative appeal from a decision of the Commission
on a request to reconsider.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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. 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 (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:
Oct. 16, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat