Anthony B. Ware, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2000
05A00923 (E.E.O.C. Nov. 29, 2000)

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.