05990876_r
11-04-1999
John H. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John H. Brown, )
Appellant, )
)
v. ) Request No. 05990876
) Appeal No. 01985217
) Agency Nos. 4-H-350-0069-98
William J. Henderson, ) 4-H-350-0181-98
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On July 16, 1999, John H. Brown (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in John H. Brown v. United
States Postal Service, EEOC Appeal No. 01985217 (June 14, 1999). The
decision was received at appellant's address of record on June 18, 1999.
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous 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 misapplication of established policy, 29
C.F.R. �1614.407(c)(2); or the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant's request to reconsider is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision defining the scope of the investigation of
appellant's complaints.
BACKGROUND
Appellant initiated contact with an EEO Counselor on December 12,
1997, with regard to both Agency No. 4-H-350-0069-98 and Agency
No. 4-H-350-0181-98. On March 19, 1998, appellant filed a formal EEO
complaint (Agency No. 4-H-350-0069-98) wherein he alleged that he was
discriminated against in reprisal for his previous EEO activity when he
was denied a Vice-President Award for Fiscal Year 1997. On March 20,
1998, appellant filed a formal EEO complaint (Agency No. 4-H-350-0181-98)
wherein he alleged that he was discriminated against in reprisal for
his previous EEO activity when he was denied a Vice-President award for
Fiscal Year 1996.
The agency accepted appellant's complaint for investigation and by
letter dated May 4, 1998, notified appellant that his two complaints
would be consolidated for joint processing as one case. (Agency
No. 4-H-350-0069-98). The agency defined the issue for investigation as
whether appellant did not receive a Vice-President Award for Fiscal Year
1997, in retaliation for his prior EEO activity. Appellant disagreed
with the agency's definition of the issue.
On May 20, 1998, the agency issued a final decision in response to
appellant's disagreement with the definition of the accepted issue.
The agency determined that the dates cited were November 3 and 10, 1997,
both in Fiscal year 1997, and, therefore, the scope of the investigation
would remain the same for the combined case.
The Commission affirmed the agency's definition of the scope of the
investigation.<1> The Commission found that the EEO Counselor's reports
and both formal complaints identified November 13, 1997, as the date of
the alleged discriminatory event. The Commission found that the scope
of the investigation was correctly limited to Fiscal Year 1997.
In his request for reconsideration, appellant argues as to Agency
No. 4-H-350-0181-98 that by letter dated December 12, 1997, he informed
the EEO Counselor/Investigator that he been discriminated against during
the October/November 1996 time frame with regard to his nonselection for
the Vice-President Award. According to appellant, he stated in this
letter that he received information between November 3 and 10, 1997,
that caused him to believe that he had been denied the Vice-President's
Award for Fiscal Year 1996 as an act of reprisal.<2> Appellant notes
that on this letter he wrote FY 96 and signed his initials underneath.
Further, appellant states that his supervisors in Fiscal Years 1996 and
1997 were different individuals, and that he made it clear to the EEO
Counselor/Investigator that they were among the management officials
responsible for the alleged discrimination.
ANALYSIS AND FINDINGS
In order to reconsider the Commission's previous decision, the appellant
must present evidence or argument that satisfies one of the criteria
of 29 C.F.R. �1614.407. After considering the appellant's request,
we find that he has satisfied the criteria for reconsideration.
The record reveals that appellant filed two separate complaints.
In Agency No. 4-H-350-0069-98, appellant alleged discrimination with
regard to not being selected for a Vice-President Award in Fiscal Year
1997. In Agency No. 4-H-350-0181-98, appellant alleged discrimination
with respect to not being selected for a Vice-President Award in Fiscal
Year 1996. We discern that with regard to both complaints appellant
obtained the information causing him to suspect discrimination at the
same time, between November 3 and 10, 1997. However, it is clear that
appellant is alleging that discrimination occurred during two separate
time periods, Fiscal Year 1996 and Fiscal Year 1997. The letters dated
December 12, 1997, sent from appellant to the EEO Counselor/Investigator,
refer separately to Fiscal Year 1996 and Fiscal Year 1997 with appellant's
initials underneath. We find that the agency improperly defined the
issue for investigation and that the scope of the investigation should
be extended to also include whether appellant was discriminated against
when he was not selected for a Vice-President Award in Fiscal Year 1996.
After a review of appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
appellant's request meets the criteria of 29 C.F.R. �1614.407(b),
and it is the decision of the Commission to grant appellant's request.
The agency's final decision is hereby REVERSED. The decision in EEOC
Appeal No. 01985217 is REVERSED. The agency shall comply with the Order
set forth below. There is no further right of administrative appeal
from a decision of the Commission on a request for reconsideration.
ORDER
The agency is ORDERED to redefine the issues accepted for processing to
include the denial of the Vice-President Award for Fiscal Year 1996. The
agency shall within fifteen (15) calendar days of the date this decision
becomes final, notify appellant in writing of the acceptance of this
issue in the further processing of his case Agency No. 4-H-350-0069-98.
A copy of the agency's notice must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 terminated the administrative processing of
your complaint.
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:
November 4, 1999
DATE Carlton
M. Hadden,
Acting Director
Office of Federal Operations 1John H. Brown v. United States Postal
Service, EEOC Appeal No. 01985217 (June 14, 1999).
2Appellant also states that in a separate letter dated December 12,
1997, pertaining to Agency No. 4-H-350-0069-98, that he was provided
information between November 3 and 10, 1997, which caused him to believe
that his nonselection for a Vice-President Award in Fiscal Year 1996
was an act of reprisal.