David Wingfield, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 27, 2000
05980964 (E.E.O.C. Nov. 27, 2000)

05980964

11-27-2000

David Wingfield, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


David Wingfield v. U.S. Postal Service

05980964

November 27, 2000

.

David Wingfield,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05980964

Appeal No. 01976544

Agency No. 4-K-200-0041-97

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant filed a request with this Commission to reconsider

the decision in David Wingfield v. U.S. Postal Service, EEOC Appeal

No. 01976544 (June 20, 1998).<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).

For the reasons set forth herein, the complainant's request for

reconsideration is denied.

On September 22, 1995, complainant filed a formal complaint claiming

unlawful employment discrimination on the basis of disability when,

on or about October 29, 1994, his position was changed from regular

Letter Carrier to Distribution Clerk/Modified Part-Time Flexible (PFT),

causing him to lose benefits (Complaint No. 4-C-200-1246-95). On May

3, 1996, the agency issued a final decision, finding no discrimination.

Complainant appealed this determination to the Commission. On December

18, 1998, the Commission issued a decision on the appeal, which reversed

the agency's finding of no discrimination and remanded the case back to

the agency to conduct a supplemental investigation, and to issue a new

decision based on the supplemental record. See Wingfield v. U.S. Postal

Service, EEOC Appeal No. 01964594 (December 18, 1998).

However, while the above referenced appeal was pending before the

Commission, complainant again contacted an EEO Counselor, on August

28, 1998, concerning the change of his position from a regular Letter

Carrier to a PFT Distribution Clerk/Modified. The EEO Counselor's Report

reflects that the agency issued a final decision on this identical matter

on May 3, 1996, concerning Complaint No. 4-D-200-1246-95. Nevertheless,

on March 14, 1997, complainant filed a formal complaint of employment

discrimination on the bases of sex, age, and disability, concerning the

change of his position from a regular Letter Carrier to a PFT Distribution

Clerk/Modified. On July 25, 1997, the agency issued a final decision,

dismissing this complaint on the grounds that it addressed the same

issued raised in Complaint No. 4-D-200-1246-95.<2> Complainant appealed

this determination to the Commission, arguing that he now had additional

evidence to demonstrate that the agency discriminated against him when

it changed his position. On June 20, 1998, the Commission issued the

prior decision which is the subject of this reconsideration, affirming

the agency's dismissal of Complaint No. 4-D-200-0041-97 on the grounds

that it raised the same matter previously considered by the agency in

Complaint No. 4-D-200-1246-95.

In his request for reconsideration, filed on July 9, 1998, complainant

again argues that he now has new evidence, not available at the time

the agency rendered its May 3, 1996, final decision on Complaint

No. 4-D-200-1246-95, which shows that the agency discriminated against

him.

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. Specifically, we

find that the record, as outlined above, clearly shows that complainant

raised the same matter in both Complaint No. 4-D-200-1246-95, and then

again in Complaint No. 4-D-200-0041-97, filing the latter complaint

as an attempt to �open� the agency's previous determination of no

discrimination, and to introduce new evidence in support of his claim.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that

is pending before or has been decided by the agency or Commission.

Therefore, notwithstanding complainant's purpose in filing the second

complaint, we find that the agency's dismissal on this ground was proper.

Accordingly, the decision in EEOC Appeal No. 01976544 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.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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 ORDEPARTMENT

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 27, 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.

2The agency also dismissed the complaint on the alternative grounds of

untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).

However, in light of the instant determination, we will not address this

alternative grounds of dismissal.