0520140106
04-15-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520140106
Appeal No. 0120130158
Agency No. 1K-204-0010-12
DENIAL
The Agency requested reconsideration of the decision in EEOC Appeal No. 0120130158 (February 27, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to 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(c).
In the underlying case, Complainant filed a formal complaint alleging, in pertinent part, that the Agency discriminated against him on the basis of disability when, on April 24, 2012, he was told that there was no work available within his medical restrictions and was sent home.1
The appellate decision reversed the Agency's decision, which held Complainant's individual claim in abeyance because of a pending class complaint, Glee Williams v. U.S. Postal Service, EEOC Hearing No. 490-2012-00180X. Specifically, the appellate decision found that it was impossible to determine, from the complaint file submitted by the Agency, whether Complainant's individual claim was identical to the claim raised in the class complaint. In so finding, the appellate decision noted that the Agency failed to provide the following: (a) any information about the Glee Williams class complaint; and (b) Complainant's formal complaint. The appellate decision remanded Complainant's claim to the Agency for further processing in accordance with 29 C.F.R. � 1614.108.
In its request for reconsideration, the Agency admitted that it did not provide the Commission with the relevant documentation. The Agency, however, provided the documentation for the first time as part of its request and urged the Commission to reconsider the appellate decision in light of the newly provided documentation.
Upon review, we find that the Agency's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
As a general rule, the Commission will not consider new evidence unless there is an affirmative showing that the evidence was not reasonably available at the time. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VI.A.3 (Nov. 9, 1999). Here, the Agency failed to provide the relevant documentation to the Commission on appeal even though it was reasonably available. Therefore, we will not consider the new documentation offered in the Agency's request for reconsideration.
This result is consistent with other recent cases in which the Agency failed to submit relevant documentation about the Glee Williams class complaint to the Commission, after complainants challenged the Agency's decision to hold their individual complaints in abeyance.
In EEOC Request No. 0520130480 (January 28, 2014), EEOC Request No. 0520130362 (December 20, 2013), EEOC Request No. 0520130366 (September 27, 2013), and EEOC Request No. 0520130405 (September 26, 2013), the Agency attempted to provide documentation about the Glee Williams class complaint on reconsideration after it had failed to do so on appeal. In all four cases, the Commission rejected the Agency's request on reconsideration to consider the documentation when that documentation had been available at the time of the appeal, and the Agency simply failed to present it.
After reviewing the previous decision and the record that was before us at the time of the appellate decision, the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120130158 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_4/15/14_________________
Date
1 In his formal complaint, Complainant also alleged that, during a May 29, 2012
pre-disciplinary interview, he was accused of threatening his supervisor. Noting that the formal complaint contained both a mixed case matter appealable to the Merit Systems Protection Board (the April 24, 2012 allegation) and a non-mixed case matter appealable to the Commission (the May 29, 2012 allegation), the Agency processed separately the May 29, 2012 allegation under Agency No. 1K-204-0015-12. On September 19, 2012, the Agency dismissed the May 29, 2012 allegation for failure to state a claim. Complainant did not file an appeal with the Commission from the Agency's dismissal. Therefore, we find that the May 29, 2012 allegation is not at issue here.
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0520140106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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