05A00923
11-29-2000
Anthony B. Ware, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Anthony B. Ware v. U.S. Postal Service
05A00923
November 29, 2000
.
Anthony B. Ware,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00923
Appeal No. 01995134
Agency No. 1-K-206-0006-99
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant filed a request to the Commission to reconsider
the decision in Anthony B. Ware v. U.S. Postal Service, EEOC Appeal
No. 01995134 (May 19, 2000).<1> EEOC Regulations provide that the
Commission may, in its 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 29 C.F.R. � 1614.405(b).
Complainant filed a formal complaint on February 19, 1999, claiming
discrimination based on sex and reprisal when a female 204B supervisor was
permitted to view employee �1017's and leave records� on two occasions
when she was not in a 204B supervisory status. On his complaint form,
complainant indicated that the discrimination was �on going� noting that
females were used differently than male custodians, and that the named
female custodian should not have been permitted to view the records
at issue. Complainant additionally lists the agency numbers for four
other complaints, presumably his, but makes no further reference to them.
Nowhere on the complaint does complainant indicate that the present claim
is part of a pattern of harassment. The agency dismissed the complaint
on the grounds of failure to state a claim, finding that complainant was
not harmed in a term or condition of employment, and does not address
the instant claim in the context of harassment.
In our previous decision, we affirmed the agency's dismissal, similarly
finding that complainant was not aggrieved pursuant to 29 C.F.R. �
1614.107(a)(1). On appeal, complainant provided no statement regarding
his claim, instead submitting numerous documents which appear to address a
claim that the agency has persistently discriminated against him and other
veterans regarding promotions. These documents also include several EEO
�pre-complaint� forms which reflect complainant's contentions that certain
agency actions, including undesirable work assignments, non-promotions,
and others, constitute a hostile work environment. We note that these
pre-complaint forms are not differentiated from the other documents in
the stack of documents presented by complainant.
In his request for reconsideration, complainant now says that he has
been subjected to a pattern of abuse and that the instant claim is not an
isolated matter. He claims now, for the first time, that the incident at
issue is part of on-going harassment, and that he has several complaints
pending before an EEOC Administrative Judge.
In this case, we find that complainant did not set forth a claim of
harassment in his formal complaint. He says only that female custodians
are treated differently than male custodians on an on-going basis,
and does not indicate that this claimed on-going different treatment
rose to the level of a hostile work environment. Even on appeal,
in submitting the stack of documents, complainant fails to indicate
that this evidence is submitted for the purpose of demonstrating a
claim of harassment, or that the instant claim is part of a pattern
of harassment. As noted, the majority of the documents concern unfair
treatment of veterans in promotion actions, which is certainly unrelated
to allowing a female custodian to view certain personnel records. And,
although the pre-complaint forms do set out claims of harassment, we
find no �pattern aspect� between these claims and the instant complaint,
such that we cannot find that the agency improperly fragmented and
dismissed the claim. See Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999) and Smith v. Department of Transportation,
EEOC Request No. 05980268 (May 26, 1999). Consequently, we conclude
that complainant did not set forth a harassment claim in this matter,
either at the complaint stage or on appeal, and that to do so now does
not satisfy the criteria for reconsideration.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01995134 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.