05970887
03-29-2000
Kim D. Newbold, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kim D. Newbold v. United States Postal Service
05970887
March 29, 2000
Kim D. Newbold, )
Complainant, )
) Request No. 05970887
v. ) Appeal No. 01962371
) Agency No. 4-E-840-1038-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On July 2, 1997, Kim D. Newbold (complainant) initiated a request to
the Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Kim D. Newbold v. United States Postal Service, EEOC
Appeal No. 01962371 (June 11, 1997).<1> EEOC Regulations provide that
the Commissioners may, in their 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 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).
Complainant requests that the Commission reconsider the remedy which
the previous decision ordered. In particular, complainant argues that
the previous decision erroneously stated that he had elected specific
performance and not reinstatement of his complaint regarding his breach
of settlement allegation. Upon review of the record, the Commission finds
that complainant's request regarding specific performance or reinstatement
was unclear and a reasonable person could have interpreted complainant's
request in the same manner as the previous decision.<2> Accordingly,
the Commission finds that the previous decision did not involve a
clearly erroneous interpretation of material fact or law. Further, the
Commission notes that the previous decision found that the agency failed
to comply with only one of the provisions of the settlement agreement.<3>
The previous decision found that the agency had placed complainant in
an appropriate position and paid for complainant's attorney fees arising
from the settlement agreement. Since the parties have already performed
several terms of the settlement agreement, specific enforcement, rather
than reinstatement of the complaint is the appropriate remedy. Rawlings
v. Department of Justice, EEOC Request No. 05910554, (August 29, 1991).
CONCLUSION
Therefore, after a review of complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
complainant's request does not meet the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny
complainant's request. The decision of the Commission in EEOC Appeal
No. 01962371 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.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall inform the complainant in writing of the reasons
for the changes in volume figures as it pertained to his evaluation at
the Cottonwood Station.
2. When seeking to determine the reasons for the changes in the volume
figures, the agency shall consider the complainant's appeal submissions,
including his description of the effect of auxiliary office time
on relevant statistics. See the complainant's submission entitled
"Workload Reports."
3. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES
If appellant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the breach allegation. The
award of attorney's fees shall be paid by the agency. The attorney
shall submit a verified statement of fees to the agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations --
within thirty (30) calendar days of this decision becoming final. The
agency shall then process the claim for attorney's fees in accordance
with 29 C.F.R. � 1614.501.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
March 29, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 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.
2Complainant states that he requested "all terms of the settlement
agreement be specifically implemented . . . . If the agency is unwilling
to comply, [complainant requested] that the complaint be reinstated for
further processing from the point at which processing ceased."
3The previous decision found that the agency had not complied with the
provision in which the agency agreed to inform complainant of the reasons
for the changes in volume figures as it pertained to his evaluation at
the agency's facility.