05a00237
08-09-2000
Kenneth E. Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth E. Clark, )
Complainant, ) Request No. 05A00237
) Appeal No. 01992080
v. ) Agency No. 4-G-720-1230-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On December 2, 1998, Kenneth E. Clark (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Kenneth E. Clark v. United States
Postal Service, EEOC Appeal No. 01992080 (October 21, 1999).<1> EEOC
regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as EEOC Regulation 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, complainant's request
is granted.
BACKGROUND
In its final decision, the agency accepted one claim for investigation,
defined as: complainant was not given an opportunity to accept his Bulk
Mail Clerk position when it was posted for a bid. In our previous
decision, the Commission found that the agency properly defined
the complaint. In this previous decision, the Commission identified
complainant's arguments as alleging: �(1) [complainant] was not given
an opportunity to accept a bulk mail position by the national and local
union agreements; and (2) the Postmaster wanted a female clerk with more
seniority to bid in [complainant's] job, and never gave [complainant]
the same opportunity on his original job as was given to a female clerk.�
The Commission found that these arguments involved the treatment of
comparative employees, and the reasoning behind the agency's failure
to place complainant in the position; the assertions were not found to
raise any additional allegations of discrimination.
On request for reconsideration, complainant claims, through his attorney,
that the Commission misinterpreted his claims. Complainant asserts that
his bulk-mail position was abolished, but then re-posted several days
later with different duty hours and �add-ons.� Complainant then argues
that the collective bargaining agreement entitled him to an opportunity
to accept the revised position without bidding for it, but he was not
given such an opportunity. Also, complainant contends that he did not
receive the position once it was re-posted for a bid. By contrast,
complainant argues that when a female co-worker's bulk-mail position
was abolished but re-posted with add-ons; she was allowed to accept the
position without bidding.
ANALYSIS AND FINDINGS
After reviewing the record in light of complainant's arguments,
we conclude that the Commission's previous decision misinterpreted
complainant's arguments. The Commission finds that the claims to be
processed should be identified as follows:
Whether complainant was subjected to disparate treatment in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. on the basis of sex when (1) he was not given an opportunity
to return to his position prior to the posting of the position with
�add-ons,� and (2) he was not selected for the position after he bid on
the position once it was re-posted.
Whether a similarly-situated female was allowed to accept her position
is relevant to complainant's disparate treatment claim, as stated above,
but does not form the basis of a separate claim.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The decision of the Commission in Appeal No. 01992080 (October 21, 1999)
and the final agency decision is REVERSED. The claims, as defined above,
are REMANDED to the agency for investigation. There is no further right
of administrative appeal on the decision of the Commission on a Request
to Reconsider.
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims 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 also shall
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. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
August 9, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.