05991158
04-11-2002
Daniel E. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Daniel E. Hill v. United States Postal Service
05991158
April 11, 2002
.
Daniel E. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Request No. 05991158
Appeal No. 01992322
Agency No. 1-H-321-0142-98
DECISION ON REQUEST FOR RECONSIDERATION
On September 13, 1999, complainant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision in
Daniel E. Hill v. United States Postal Service, EEOC Appeal No. 01992322
(September 2, 1999). 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. For the reasons set forth herein, it is the decision
of the Commission to deny complainant's request but to reconsider the
prior decision on its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of complainant's complaint on the grounds that
it was the basis of a pending civil action.
BACKGROUND
In the previous decision, the Commission dismissed the complaint, EEOC
Appeal No. 01992322, on the grounds that it was the basis of a pending
civil action. The record revealed that complainant filed a civil
action on July 15, 1998, case no. 98-291-CIV-ORL-19C, in the United
States District Court, Middle District of Florida, Orlando Division,
alleging the same issue as in his EEO complaint.
On request for reconsideration, complainant stated that there is no
case pending before the United States District Court and, as such, the
referenced case should be investigated and determined in the EEOC forum.
In support of his request, complainant failed to submit evidence
indicating that his civil action was dismissed without prejudice.
However, the Clerk's office from the United States District Court of
Middle District of Florida, indicates that the civil action case number
98-291-CIV-ORL-19C, was dismissed without prejudice on August 31, 1998.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. � 1614.405(b)
has been met. After a careful review of the record, the Commission finds
that complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405. The complainant did not establish that the appellate
decision involved a clearly erroneous interpretation of material fact or
law, or that the previous decision would have a substantial impact on the
agency's policies, practices, or operations. However, on its own motion,
the Commission has decided to reconsider the previous decision since
complainant's civil action was dismissed without prejudice on August
31, 1998. The Commission has held that access to the administrative
process must be maintained for individuals whose civil actions are
dismissed without prejudice. See Cooper v. Department of the Treasury,
EEOC Request No. 05920795 (April 8, 1993); Viera v. Department of the
Navy, EEOC Request No. 05910733. As such, we deem it appropriate to
reverse the earlier decision since the record reveals that complainant
filed a Notice of Dismissal, on August 31, 1998, regarding the case
no. 98-291-CIV-ORI-19-C and the matter was dismissed without prejudice.
Therefore, the agency is ordered to accept and process this complaint.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request fails to meet the criteria of 29 C.F.R. � 1614.405.
The Commission, however, has decided to reconsider the previous
decision on its own motion. Upon reconsideration the decision in Appeal
No. 01992322 and the final agency decision are REVERSED. There is no
further right of administrative appeal on the decision of the Commission
on a Request to Reconsider.
ORDER
The agency is ordered to process the complaint in accordance with 29
C.F.R. 1614.108. The agency shall acknowledge to the complainant that
it has received the remanded complaint 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 shall also 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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
April 11, 2002
________________________
DATE