05980256
06-17-1999
Marvin P. Moseley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marvin P. Moseley v. United States Postal Service
05980256
June 17, 1999
Marvin P. Moseley, )
Appellant, )
) Request No. 05980256
v. ) Appeal No. 01972583
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On January 6, 1998, Marvin P. Moseley (hereinafter referred to as
appellant) initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Marvin
P. Moseley v. Marvin T. Runyon, Jr., Postmaster General, United States
Postal Service, EEOC Appeal No. 01972583 (December 5, 1997), received
by appellant on December 13, 1997. EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which 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 a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria in
29 C.F.R. �1614.407(c). Therefore, it is the decision of the Commission
to deny appellant's request.<1> The decision in EEOC Appeal No. 01972583
(December 5, 1997) remains the Commission's final decision. The agency
shall comply with the provisions of the Order set forth below. There is
no further right of administrative appeal on a decision of the Commission
on this Request for Reconsideration.
ORDER
The agency is ORDERED to comply with provision 2a of the settlement
agreement. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall supplement the record with evidence,
e.g., a statement by Labor Relations Representative A or a statement by
the Postmaster of the Yuba City Post Office, indicating that the agency
has implemented the terms of provision 2a regarding the response that
the agency would provide to inquiries regarding appellant's employment
with the agency. A copy of the documentation showing that the agency has
complied with provision 2a of the settlement agreement must be submitted
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.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
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 terminate 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:
June 17, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant has not shown that the information concerning 1997 job
vacancies was unavailable at the time the previous decision was issued.
Although appellant asserted that he assumed he would be contacted if such
information was necessary, appellant was specifically advised, by letter
from the Commission's Office of Federal Operations dated February 11,
1997, that any statement in support of his appeal must be filed within 30
days of filing the appeal and that any material submitted beyond that
time would not be considered. Appellant also has not provided any
evidence showing that potential employers requested information from the
agency or declined to hire him based upon such information. Specifically,
Person A appears to be the secretary of appellant's attorney and not
affiliated with a potential employer. Finally, the previous decision
correctly noted that Commission precedent provides that complainants are
not entitled to damages for breach of settlement allegations. See Kessler
v. USPS, EEOC Request No. 05970446 (February 26, 1999).