05980964
11-27-2000
David Wingfield, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David Wingfield v. U.S. Postal Service
05980964
November 27, 2000
.
David Wingfield,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05980964
Appeal No. 01976544
Agency No. 4-K-200-0041-97
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant filed a request with this Commission to reconsider
the decision in David Wingfield v. U.S. Postal Service, EEOC Appeal
No. 01976544 (June 20, 1998).<1> EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates that:
(1) the appellate decision involved a clearly erroneous interpretation
of material fact or law; or
(2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
See 29 C.F.R. � 1614.405(b).
For the reasons set forth herein, the complainant's request for
reconsideration is denied.
On September 22, 1995, complainant filed a formal complaint claiming
unlawful employment discrimination on the basis of disability when,
on or about October 29, 1994, his position was changed from regular
Letter Carrier to Distribution Clerk/Modified Part-Time Flexible (PFT),
causing him to lose benefits (Complaint No. 4-C-200-1246-95). On May
3, 1996, the agency issued a final decision, finding no discrimination.
Complainant appealed this determination to the Commission. On December
18, 1998, the Commission issued a decision on the appeal, which reversed
the agency's finding of no discrimination and remanded the case back to
the agency to conduct a supplemental investigation, and to issue a new
decision based on the supplemental record. See Wingfield v. U.S. Postal
Service, EEOC Appeal No. 01964594 (December 18, 1998).
However, while the above referenced appeal was pending before the
Commission, complainant again contacted an EEO Counselor, on August
28, 1998, concerning the change of his position from a regular Letter
Carrier to a PFT Distribution Clerk/Modified. The EEO Counselor's Report
reflects that the agency issued a final decision on this identical matter
on May 3, 1996, concerning Complaint No. 4-D-200-1246-95. Nevertheless,
on March 14, 1997, complainant filed a formal complaint of employment
discrimination on the bases of sex, age, and disability, concerning the
change of his position from a regular Letter Carrier to a PFT Distribution
Clerk/Modified. On July 25, 1997, the agency issued a final decision,
dismissing this complaint on the grounds that it addressed the same
issued raised in Complaint No. 4-D-200-1246-95.<2> Complainant appealed
this determination to the Commission, arguing that he now had additional
evidence to demonstrate that the agency discriminated against him when
it changed his position. On June 20, 1998, the Commission issued the
prior decision which is the subject of this reconsideration, affirming
the agency's dismissal of Complaint No. 4-D-200-0041-97 on the grounds
that it raised the same matter previously considered by the agency in
Complaint No. 4-D-200-1246-95.
In his request for reconsideration, filed on July 9, 1998, complainant
again argues that he now has new evidence, not available at the time
the agency rendered its May 3, 1996, final decision on Complaint
No. 4-D-200-1246-95, which shows that the agency discriminated against
him.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. Specifically, we
find that the record, as outlined above, clearly shows that complainant
raised the same matter in both Complaint No. 4-D-200-1246-95, and then
again in Complaint No. 4-D-200-0041-97, filing the latter complaint
as an attempt to �open� the agency's previous determination of no
discrimination, and to introduce new evidence in support of his claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
Therefore, notwithstanding complainant's purpose in filing the second
complaint, we find that the agency's dismissal on this ground was proper.
Accordingly, the decision in EEOC Appeal No. 01976544 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
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 ORDEPARTMENT
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 27, 2000
__________________
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.
2The agency also dismissed the complaint on the alternative grounds of
untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
However, in light of the instant determination, we will not address this
alternative grounds of dismissal.