Anthony Des Vignes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity CommissionNov 21, 2000
05a01252 (E.E.O.C. Nov. 21, 2000)

05a01252

11-21-2000

Anthony Des Vignes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Northeast Area), Agency.


Anthony Des Vignes v. United States Postal Service

05A01252

November 21, 2000

.

Anthony Des Vignes,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(Northeast Area),

Agency.

Request No. 05A01252

Appeal No. 01A02743

Agency No. 4B010001799

Hearing No. 160-99-8689X

DENIAL OF REQUEST FOR RECONSIDERATION

Anthony Des Vignes (complainant) initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Anthony Des Vignes v. United States Postal Service, EEOC

Appeal No. 01A02743 (July 28, 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).

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. In his request

for reconsideration, complainant contends, among other things, that the

previous decision involved clearly erroneous interpretations of fact

and law in that the Commission failed to allow him to add new bases of

discrimination to his complaint on appeal. Complainant reiterates the

argument, first raised on appeal, that because he represented himself

prior to the appeal, his attempt to add the new bases of race and national

origin on appeal should be honored. He also reiterates his argument

that the agency should have investigated the bases of race and national

origin when the investigation revealed that one of the named comparators

was of a different race and national origin than complainant.

While there are circumstances in which we allow the addition of a new

basis of discrimination to a complaint on appeal, the circumstances

of this case do not support such an outcome. See Valdez v. United

States Postal Service, EEOC Appeal No. 01A00196 (May 11, 2000)

(Absent a compelling reason, a complainant may not add a new basis

on appeal). Complainant clearly indicated during EEO counseling, in

his formal complaint, and in his affidavit that he was subjected to sex

discrimination. At no point during the investigation did he indicate

that he wanted to add the bases of race and/or national origin to his

complaint. Complainant also made no attempt to add a new basis when

he requested a hearing, or when he was informed that the Administrative

Judge intended to issue a decision without a hearing.

We find that complainant had ample opportunity to add the bases of

race and national origin to his complaint prior to appeal. He also had

sufficient opportunity to raise concerns about the agency's investigation.

His argument that his �pro se� status excuses his failure to do so is

without merit. Moreover, we find that the agency adequately investigated

the claim complainant raised. After a careful review of the record,

including arguments and evidence not specifically mentioned in this

decision, we find that complainant failed to demonstrate that the previous

decision involved a clearly erroneous interpretation of material fact or

law or that it will have a substantial impact on the policies, practices,

or operations of the agency. Accordingly, the decision in EEOC Appeal

No. 01A02743 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 21, 2000

__________________

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.