05980851
09-30-1999
James D. Tucker, Appellant, v. William J. Henderson, Postmaster General, States Postal Service, Agency.
James D. Tucker, )
Appellant, )
) Request No. 05980851
v. ) Appeal No. 01965496
) Agency No. 4H-335-1128-95
) Hearing No. 150-95-8478X
William J. Henderson, )
Postmaster General, ) United
States Postal Service, )
Agency. )
__________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On May 22, 1998, the United States Postal Service (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider
the decision in James D. Tucker v. William J. Henderson, Postmaster
General, United States Postal Service, EEOC Appeal No. 01965496
(April 28, 1998). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons stated below, the agency's
request is denied.
The issue presented is whether the previous decision's determination that
the agency violated the Age Discrimination in Employment Act should be
reconsidered pursuant to 29 C.F.R. �1614.407(c).
The record indicates that appellant, a Rural Carrier Associate (RCA),
filed a formal complaint of age discrimination (date of birth 10/9/53)
when another employee (date of birth 1/30/48) was placed ahead of him
on the seniority list on March 3, 1995. Appellant and the comparative
employee were both hired by the agency on December 31, 1988, as RCAs.
It was undisputed that at the time, and for six years thereafter,
appellant was placed above the comparative employee on the seniority
list, due to the fact that his entrance test scores were higher.
In 1995, the agency learned that its seniority list was improper, in
that, the standings of appellant and the comparative were inverted.
According to the National Agreement for Rural Carriers, when all other
factors are equal, the "tie-breaker" for determining seniority was
the earliest date of birth. After an investigation of the complaint,
appellant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a recommended decision finding no discrimination. The
agency later adopted the AJ's decision as its final agency decision,
and appellant thereafter submitted his appeal to the Commission.
The previous decision, finding that the agency's actions were a per se
violation of Section 15 of the ADEA, reversed the final agency decision,
and remanded the matter for a determination of an appropriate remedy.
In its request to reconsider (RTR), the agency argued that the previous
decision (1) misapplied the holding in O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 878 (1996), (2) misinterpreted the Age
Discrimination in Employment Act (ADEA), and (3) could result in a
disruption of the assignments of RCAs and substantially impact mail
service in the United States. We also note that in Garrett v. USPS,
EEOC Request No. 05980040, a companion case that raised the same issue,
the Union submitted an amicus curiae memorandum that supported the
agency's position. In pertinent part, the Union argued that:
[h]undreds, if not thousands of rural letter carriers employed by the
agency and governed by the collective bargaining agreement share the same
date of hire as one or more other rural carriers, and are thus subject
to application of the 'earliest date of birth' seniority provision.
The Commission's decision, should it stand, could result in substantial
disruptions in the assignments and working conditions of rural letter
carriers nationwide.
The Union also indicated, however, that the parties could negotiate an
alternate "tie-breaking" methodology to replace the current date-of-birth
provision.<1>
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is
met. The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A reconsideration request is not merely a form of a
second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September
7, 1990). Instead, it is an opportunity to submit newly discovered
evidence, not previously available; to establish substantive error in
a previous decision; or to explain why the previous decision will have
effects beyond the case at hand. Lyke v. United States Postal Service,
EEOC Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
the agency's request does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). As noted in the previous decision, the Supreme
Court, in O'Connor, found that "the fact that one person in the protected
class has lost out to another person in the protected class is thus
irrelevant, so long as he has lost out because of his age." Id. Also,
contrary to the agency's position, the ADEA specifically provides that
"[a]ll personnel actions affecting employees or applicants for employment
who are at least 40 years of age . . . shall be made free from any
discrimination based on age."
Finally, with respect to the contention of both the agency and the Union
that an adverse ruling could result in a disruption of the assignments
of RCAs and substantially impact mail service in the United States,
we do not find that a violation of the ADEA should be allowed to
continue merely because of speculation about the consequences that an
adverse ruling could have. We note in this regard that neither the
agency nor the Union presented any evidence that would support their
contention. The Commission is confident that the agency can fashion an
alternate tie-breaker that will not violate the laws against employment
discrimination and which will protect our nation's mail service. In order
to provide the agency with sufficient time to negotiate a "tiebreaker,"
the Order below provides the agency 120 days within which to negotiate
an alternate "tie breaker."
After a review of the agency's request to reconsider, appellant's
response, the previous decision, and the entire record, the Commission
finds that the agency's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 01965496 (April 28, 1998)
remains the Commission's final decision. The agency will comply with the
previous decision's Order which is restated below. There is no further
right of administrative appeal from a decision of the Commission on a
request to reconsider.
ORDER
The agency is ordered to take the following action:
1. Within 120 days of its receipt of this decision, the agency is
directed to fashion an alternate tie-breaker, other than the earliest
date of birth. Thereafter, the agency shall redetermine appellant's
placement on the seniority list using the alternate tie-breaker.
2. In the event that appellant prevails after application of the
alternate tie-breaker, the agency shall award appellant all benefits he
would have been entitled to had he been placed ahead of the comparative
employee on the seniority list as of March 1995.
3. The agency shall cease from hereafter using an employee's date
of birth as a tie-breaker, when determining seniority list placement,
if such action involves employees over the age of 40.<2>
4. The agency is ordered to post at its Winter Haven, Fla. facility,
copies of the attached notice. Copies of the notice, after being signed
by the agency's duly authorized representative, shall be posted by
the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive
days, in conspicuous places, including all places where notices to
employees are customarily posted. The agency shall take reasonable
steps to ensure that said notices are not altered, defaced, or covered
by any other material. The original signed notice is to be submitted to
the Compliance Officer at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within ten (10) calendar
days of the expiration of the posting period.
The agency is directed to submit a report of compliance, as provided in
the statement entitled "Implementation of the Commission's Decision." The
report shall include supporting documentation verifying that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
09-30-99
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Due to the similarity between the present and companion case, we find
it appropriate to consider the Union's memorandum in our decision herein.
2The relief set forth in paragraphs 1 and 2 of the Order above is
specifically designed to place the appellant in the position he would
have enjoyed had he not been discriminated against. See Albermale Paper
Company v. Moody, 422 U.S. 405 (1975). Nothing in this decision, however,
should be construed as indicating that employees who were affected by the
"tie-breaking" system in the past, but chose not to file EEO complaints,
are entitled to similar relief.