05981113
01-16-2001
Vicki D. Corbin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vicki D. Corbin v. United States Postal Service
05981113
January 16, 2001
.
Vicki D. Corbin,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05981113
Appeal No. 01976810
Agency No. 4-G-730-0113-97
DECISION ON REQUEST FOR RECONSIDERATION
On August 17, 1998, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Vicki
D. Corbin v. United States Postal Service, EEOC Appeal No. 01976810
(July 7, 1998).<1> EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id.
The record indicates that complainant filed her complaint at issue
alleging that: (1) on March 5, 1997, her schedule was changed; (2) on
March 7 and 14, 1997, she was issued Letters of Warning (LOWs); (3) on
March 14, 1997, she was referred to Employee Assistance Program (EAP); (4)
on April 15, 1997, she was subjected to an official discussion concerning
clock rings; (5) on April 16, 1997, she was subjected to an official
discussion concerning her attendance; and (6) on or about April 16,
1997, she was told not to leave her work area while others were allowed
to do so. The agency, in its decision, dated August 21, 1997, dismissed
claims (2) and (3) for stating the same claims that were pending before
the agency under Agency No. 4-G-730-0098-97. The agency dismissed claims
(4) and (5) for failure to state a claim since complainant suffered no
harm as a result of the discussions, and no discipline was issued to her.
The agency dismissed the entire complaint on the grounds that it formed
the basis of pending civil actions, Civil Action Nos. CIV-96-1766-T and
CIV-96-1774-W.
The Commission previously reversed the agency's dismissal of claims (1),
(2), (3), and (6) because the agency failed to submit any evidence to
indicate that these matters were pending before the agency or were the
basis of a civil action. However, the Commission affirmed the agency's
dismissal of claims (4) and (5) since they failed to state a claim.
On its request for reconsideration, the agency, for the first
time, submits a copy of complainant's previous complaint,
Agency No. 4-G-730-0098-97, filed on May 12, 1997, and a copy of
complainant's Second Amended Complaint concerning her Civil Action Case
No. CIV-96-1766-T, which was filed in the United States District Court
for the Western District of Oklahoma, in May 1997.
Initially, the Commission notes that the record clearly indicates that
the agency had or should have had the above documents, both filed in May
1997, at the time of the previous appeal, which was filed thereafter on
September 11, 1997. However, the agency did not submit these until this
instant request. Thus, the Commission notes that the agency's request
should be denied since it does not meet any criteria of the regulation set
forth at 29 C.F.R. � 1614.405(b). However, in the interests of equity and
judicial economy, the Commission shall reconsider the previous decision
on our own motion.
In her Second Amended Complaint, complainant alleged that since 1989, she
filed numerous EEO complaints against the agency who �continually harassed
her and created a sustained intolerable, hostile work environment that
has changed the terms and conditions of her employment.� In response
to the agency's request for reconsideration, complainant contends that
the alleged incidents in the instant complaint involve a hostile work
environment to which she was subjected after filing her civil action,
which was subsequently dismissed with prejudice on June 30, 1997.
Complainant submits a copy of the court order dated July 30, 1997,
denying complainant's motion to reconsider the court's June 30, 1997
dismissal order.
In her previous complaint, Agency No. 4-G-730-0098-97, complainant
alleged, inter alia, that she received LOWs dated March 6 and 14, 1997,
which were received on March 7 and 14, 1997, respectively, and she
was referred to EAP on March 14, 1997.<2> Since claim (2) concerned
the same LOWs raised in the previous complaint, the Commission finds
that the agency's dismissal of claim (2) for stating the same claim
that was pending before the agency was proper, pursuant to 29 C.F.R. �
1614.107(a)(1). With regard to claim (3), the record indicates that the
agency issued a decision dated June 17, 1997, concerning the previous
complaint, Agency No. 4-G-730-0098-97, dismissing a portion of the
claims therein, including the March 14, 1997 EAP referral. Thus, the
Commission finds that the agency's dismissal of claim (3) for stating
the same claim that had been previously decided by the agency was proper,
pursuant to 29 C.F.R. � 1614.107(a)(1).
Upon review of complainant's Second Amended Complaint in the civil action,
the Commission finds that the matters raised in claims (1) and (6) are
inextricably intertwined with the incidents raised in the civil action.
Specifically, in the May 1997 civil action complaint, complainant raised
the issue of two LOWs she received in 1997, �as well as other violations
of a continuing nature since the filing of her original complaint.�
We find that claims (1) and (6), which occurred in March and April
1997, were encompassed in complainant's May 1997 civil action. Thus,
the Commission finds that the agency's dismissal of claims (1) and (6)
on the grounds that they were the basis of a civil action was proper,
pursuant to 29 C.F.R. � 1614.107(a)(3).
The decision of the Commission in Appeal No. 01976810 is MODIFIED and
the agency's decision dismissing the complaint is hereby AFFIRMED.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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 (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
January 16, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 the agency indicated, in its decision dated June 17, 1997,
concerning the complainant's previous complaint, that the alleged EAP
referral occurred on March 7, 1997, complainant, in her EEO Request for
Counseling form, stated that it actually occurred when she received her
second LOW which was on March 14, 1997.