05990277
11-04-1999
Steven G. Constable, Appellant, v. Postmaster General, United States Postal Service, (N.E./N.Y. Metro) Agency.
Steven G. Constable, )
Appellant, )
)
v. ) Request No. 05990277
) Appeal No. 01974765 William J. Henderson,
) Agency No. 4B120006397
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro) )
Agency. )
______________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
On December 22, 1998, appellant initiated a request to the Equal
Employment Opportunity Commission (EEOC) to reconsider the decision in
Steven G. Constable v. William J. Henderson, EEOC Appeal No. 01974765
(December 15, 1998). 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 misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous 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 previous
decision and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. � 1614.407(c), and it is the
decision of the Commission to grant appellant's request.
ISSUE PRESENTED
The issue presented is whether the previous decision was correct when
it affirmed the agency's dismissal of appellant's complaint (alleging
a denial of training opportunities/advancement) for stating the same
claim as previously filed.
BACKGROUND
Appellant filed an EEO complaint dated September 11, 1995, alleging that
he was discriminated against on the bases of sex, non-union affiliation
and in reprisal for prior EEO activity when he was denied ongoing training
opportunities, most recently during the period February 1997 through April
7, 1997, as an Acting Supervisor (204-B) at the Lansingburgh Station.
Originally, the agency dismissed this complaint on the grounds that
appellant failed to state a claim. The appellant appealed the dismissal to
the Commission and in a decision dated September 10, 1996, the complaint
was remanded to the agency for appellant to provide specific dates of
the alleged discriminatory behavior. The agency issued a final agency
decision (FAD) on October 29, 1996, dismissing the complaint for stating
the same claim raised in three prior complaints. The appellant appealed,
and the Commission affirmed the FAD.
In appellant's request for reconsideration, appellant contends the issue
in this complaint concerns a different time period then the training
that was denied in prior complaints. The agency requests that we deny
appellant's request because the appellant failed to identify any person
who was newly assigned training at the Lansingburgh Station during the
period of February 1997, through April 7, 1997.
ANALYSIS AND FINDINGS
For the foregoing reasons, the Commission finds that appellant's request
for reconsideration meets the criterion of 29 C.F.R. �1614.407(c)(2). We
note that EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in
pertinent part, that the agency shall dismiss a complaint or a portion
of a complaint that states the same claim that is pending before or
has been decided by the agency or Commission. The Commission has held
that a complaint must set forth the identical matters as contained in
a previous complaint filed by the same complainant, in order for the
complaint to be dismissed.
After a careful review of the record, we find that the agency erred in
its application of EEOC Regulation 29 C.F.R. �1614.107(a). In the instant
complaint, appellant alleges he was denied training opportunities from
February 1997, through April 1997. Appellant's prior complaints involve
lost training opportunities from June 1985 through the Fall of 1994,
July 1995, and October 1995 through August 1996. Hence, we do not have
identical matters due to the time differences. Consequently, we find
that the previous decision erred.
CONCLUSION
After a review of appellant's request to reconsider, the agency's
response, the previous decision, and the entire record, the
Commission finds that appellant's request meets the criterion of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to GRANT appellant's request. The decision in EEOC Appeal No. 01974765
(December 15, 1998) is REVERSED and REMANDED for investigation. There is
no further right of administrative appeal on a decision of the Commission
on a Request to Reconsider.
ORDER (E1092)
The agency is ORDERED to process complaint 4B120006397 in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to the appellant that
it has received the complaint within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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 (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:
November 4, 1999
________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations