05a01227
03-01-2001
Henry Cabone, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Henry Cabone v. United States Postal Service
05A01227
03-01-01
.
Henry Cabone,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A01227
Appeal No. 01985223
Agency No. 1F-933-1014-96
DECISION
On September 1, 2000, Henry Cabone (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Henry Cabone v. William J. Henderson,
Postmaster General, United States Postal Service, EEOC Appeal No. 01985223
(August 10, 2000). EEOC regulations provide that the Commission
may, in its discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved a clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation
of the agency. 29 C.F.R. � 1614.405(b).<1> For the reasons set forth
below, the complainant's request is denied.
The issue presented for decision is whether the complainant's request
meets the criteria for reconsideration.
In a settlement agreement (SA) dated March 21, 1997, the parties agreed,
inter alia, that:
Complainant agrees to follow instructions from this point forward.
If all instructions are followed between today's date and April 30, 1997,
the letter of warning dated April 15, 1996 shall be removed from his
[official personnel file (OPF)].
On September 10, 1997, the agency issued complainant a notice proposing
his removal and referenced the April 15, 1996, letter as prior discipline.
The agency did not take further action, and complainant was not removed.
On May 13, 1998, the agency issued complainant a notice proposing his
suspension and referenced the April 15, 1996, letter. The proposal to
suspend was rescinded on May 28, 1998. Complainant alleged a breach of
the SA.<2>
In its final decision, the agency acknowledged that it had failed
to remove the April 15, 1996, but contended that no breach occurred
since complainant suffered no harm. Our previous decision found that
the agency had breached the SA and directed the agency to comply with
the SA. Complainant has filed a request that the Commission reconsider
the previous decision, asking that the agency reinstate his complainant,
remove all references to the notice of proposed removal, pay damages,
and remove all references to the May 1998 suspension.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow and is not merely a form of a second appeal. Lopez v. Department
of the Air Force, EEOC Request No. 05890749 (September 28, 1989);
Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).
As set out in the previous decision, the Commission's regulations
provide that, upon a finding of breach, a complainant may request either
reinstatement of his complaint at the point processing ceased<3> or
specific performance of its terms. 29 C.F.R. � 504(a). Once the claim of
breach is appealed to the Commission, however, and the Commission finds
that a breach occurred, it may order reinstatement of the complaint or
compliance with the SA. Because of the time that has passed since the
SA was signed and the financial consideration exchanged by the parties,
we find that the previous decision's order directing compliance is the
better choice in the circumstances. Further, complainant's concerns
that reference to the proposed removal and the proposed suspension may
remain available in his personnel file will be resolved by the agency's
compliance with the terms of the SA.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request fails to meet any of the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the
complainant's request. The decision of the Commission in EEOC Appeal
No. 01985223 (August 10, 2000) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration. The agency is directed
to comply with the Order, below, restated from the previous decision.
ORDER
The agency is ordered to take the following actions within 30 days of
the date this decision becomes final:
1. If the agency has not done so already, the agency shall comply with
the terms of the March 21, 1997 settlement agreement between the agency
and appellant by removing the April 15, 1996 letter of warning from
appellant's OPF.
2. Whether the agency already has complied with the terms of March
21, 1997 settlement agreement, or whether it does so only on remand,
the agency shall submit a report of compliance to the Commission. The
report shall include supporting documentation, including documentary and
testimonial evidence, which demonstrates that the corrective action has
been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-01-01______________
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.
2In EEOC Appeal No. 01975812 (October 6, 1998), the Commission remanded
the issue of breach and directed the agency to process complainant's
claim of breach, using May 4, 1998, as the date of notice.
3Reinstatement of complainant's complaint would require him to repay the
amount paid pursuant to the SA and restore the letters of April 15, 1996,
the proposed removal, and the proposed suspension to his personnel file.