Andrew Fullman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 14, 2000
05981046 (E.E.O.C. Jan. 14, 2000)

05981046

01-14-2000

Andrew Fullman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Andrew Fullman v. United States Postal Service

05981046

January 14, 2000

Andrew Fullman, )

Complainant, )

) Request No. 05981046

v. ) Appeal No. 01975715

) Agency No. 1C-191-1121-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On August 10, 1998, the United States Postal Service (hereinafter

referred to as the agency) timely initiated a request to the Equal

Employment Opportunity Commission (the Commission) to reconsider the

decision in Andrew Fullman v. William J. Henderson, Postmaster General,

United States Postal Service, EEOC Appeal No. 01975715 (July 8, 1998).

The agency received the decision on July 10, 1998. EEOC regulations

provide that the Commissioners may, in their discretion, reconsider any

previous decision where the party demonstrates that: (1) the previous

decision involved a clearly erroneous interpretation of material fact

or law; or (2) the decision will have a substantial impact on the

policies, practices or operation of the agency. 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.405(b)).<1> For the reasons set forth below, the agency's request

is granted.

The issue presented is whether the previous decision properly remanded

the complaint.

Complainant sought counseling on April 26, 1996, and filed his

formal complaint on December 29, 1996, alleging discrimination based

on race/color (black) and sex. Specifically, complainant alleged

discrimination with regard to a notice he received in March-April 1996,

that he was separated from the agency effective August 14, 1992,<2>

"due to dishonest conduct - submitting a false compensation claim as

cited in letter dated October 6, 1989." The notice was processed on

March 26, 1996, and stated that complainant's last day in pay status

was March 26, 1989. In the instant complaint, complainant sought to

challenge his removal.

The agency dismissed the instant complaint, stating that complainant

raised the same issue in Complaint No. 2A-1072-90, which was dismissed on

March 12, 1990, for untimely contact with an EEO counselor. The previous

decision remanded the complaint for processing on the grounds that the

agency had not demonstrated that the 1989 complaint was identical to

the instant complaint, and had not explained documents in the record

directing complainant to report for work and training in 1993.

The agency has filed a request to reconsider (RTR) the previous decision,

arguing that the issue raised in the instant complaint is identical

and arises from the same personnel action as the earlier complaint.

The agency includes a copy of the final agency decision for Complaint

No. 2A-1072-90. The agency contends that the March 1996 notice was a

confirmation and follow-up to the 1989 dismissal.

In order to merit the reconsideration of a prior Commission decision,

the requesting party must submit written argument that tends to establish

that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.

The Commission's scope of review on a request for reconsideration is

narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). An RTR is not merely a form of a second appeal.

Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).

Although the agency did not clearly explain the two 1993 letters,

which complainant did not challenge at the time, the result of mere

bureaucratic confusion or mistake cannot be used as a vehicle to challenge

an event that has already been the subject of a formal complaint.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.107(a)(1). Consequently, we grant the

agency's request. The agency's final decision dismissing complainant's

complaint is affirmed.

After a careful review of the record, the Commission finds that the

agency's request meets the regulatory criteria of 29 C.F.R. � 1614.405(b).

CONCLUSION

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the agency's

request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the

decision of the Commission to grant the agency's request. The decision

of the Commission in EEOC Appeal No. 01975715 July 8, 1998 is REVERSED,

and the agency's final decision is AFFIRMED. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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. 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.

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:

01-14-00

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

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.

2Until August 14, 1992, the union had maintained a grievance contesting

complainant's removal. On that date, the union notified the agency that

the grievance was withdrawn.