John H. Brown, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990876_r (E.E.O.C. Nov. 4, 1999)

05990876_r

11-04-1999

John H. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John H. Brown, )

Appellant, )

)

v. ) Request No. 05990876

) Appeal No. 01985217

) Agency Nos. 4-H-350-0069-98

William J. Henderson, ) 4-H-350-0181-98

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On July 16, 1999, John H. Brown (hereinafter referred to as appellant)

timely initiated a request to the Equal Employment Opportunity Commission

(the Commission) to reconsider the decision in John H. Brown v. United

States Postal Service, EEOC Appeal No. 01985217 (June 14, 1999). The

decision was received at appellant's address of record on June 18, 1999.

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

that 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 misapplication of established policy, 29

C.F.R. �1614.407(c)(2); or the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

Appellant's request to reconsider is granted.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's final decision defining the scope of the investigation of

appellant's complaints.

BACKGROUND

Appellant initiated contact with an EEO Counselor on December 12,

1997, with regard to both Agency No. 4-H-350-0069-98 and Agency

No. 4-H-350-0181-98. On March 19, 1998, appellant filed a formal EEO

complaint (Agency No. 4-H-350-0069-98) wherein he alleged that he was

discriminated against in reprisal for his previous EEO activity when he

was denied a Vice-President Award for Fiscal Year 1997. On March 20,

1998, appellant filed a formal EEO complaint (Agency No. 4-H-350-0181-98)

wherein he alleged that he was discriminated against in reprisal for

his previous EEO activity when he was denied a Vice-President award for

Fiscal Year 1996.

The agency accepted appellant's complaint for investigation and by

letter dated May 4, 1998, notified appellant that his two complaints

would be consolidated for joint processing as one case. (Agency

No. 4-H-350-0069-98). The agency defined the issue for investigation as

whether appellant did not receive a Vice-President Award for Fiscal Year

1997, in retaliation for his prior EEO activity. Appellant disagreed

with the agency's definition of the issue.

On May 20, 1998, the agency issued a final decision in response to

appellant's disagreement with the definition of the accepted issue.

The agency determined that the dates cited were November 3 and 10, 1997,

both in Fiscal year 1997, and, therefore, the scope of the investigation

would remain the same for the combined case.

The Commission affirmed the agency's definition of the scope of the

investigation.<1> The Commission found that the EEO Counselor's reports

and both formal complaints identified November 13, 1997, as the date of

the alleged discriminatory event. The Commission found that the scope

of the investigation was correctly limited to Fiscal Year 1997.

In his request for reconsideration, appellant argues as to Agency

No. 4-H-350-0181-98 that by letter dated December 12, 1997, he informed

the EEO Counselor/Investigator that he been discriminated against during

the October/November 1996 time frame with regard to his nonselection for

the Vice-President Award. According to appellant, he stated in this

letter that he received information between November 3 and 10, 1997,

that caused him to believe that he had been denied the Vice-President's

Award for Fiscal Year 1996 as an act of reprisal.<2> Appellant notes

that on this letter he wrote FY 96 and signed his initials underneath.

Further, appellant states that his supervisors in Fiscal Years 1996 and

1997 were different individuals, and that he made it clear to the EEO

Counselor/Investigator that they were among the management officials

responsible for the alleged discrimination.

ANALYSIS AND FINDINGS

In order to reconsider the Commission's previous decision, the appellant

must present evidence or argument that satisfies one of the criteria

of 29 C.F.R. �1614.407. After considering the appellant's request,

we find that he has satisfied the criteria for reconsideration.

The record reveals that appellant filed two separate complaints.

In Agency No. 4-H-350-0069-98, appellant alleged discrimination with

regard to not being selected for a Vice-President Award in Fiscal Year

1997. In Agency No. 4-H-350-0181-98, appellant alleged discrimination

with respect to not being selected for a Vice-President Award in Fiscal

Year 1996. We discern that with regard to both complaints appellant

obtained the information causing him to suspect discrimination at the

same time, between November 3 and 10, 1997. However, it is clear that

appellant is alleging that discrimination occurred during two separate

time periods, Fiscal Year 1996 and Fiscal Year 1997. The letters dated

December 12, 1997, sent from appellant to the EEO Counselor/Investigator,

refer separately to Fiscal Year 1996 and Fiscal Year 1997 with appellant's

initials underneath. We find that the agency improperly defined the

issue for investigation and that the scope of the investigation should

be extended to also include whether appellant was discriminated against

when he was not selected for a Vice-President Award in Fiscal Year 1996.

After a review of appellant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

appellant's request meets the criteria of 29 C.F.R. �1614.407(b),

and it is the decision of the Commission to grant appellant's request.

The agency's final decision is hereby REVERSED. The decision in EEOC

Appeal No. 01985217 is REVERSED. The agency shall comply with the Order

set forth below. There is no further right of administrative appeal

from a decision of the Commission on a request for reconsideration.

ORDER

The agency is ORDERED to redefine the issues accepted for processing to

include the denial of the Vice-President Award for Fiscal Year 1996. The

agency shall within fifteen (15) calendar days of the date this decision

becomes final, notify appellant in writing of the acceptance of this

issue in the further processing of his case Agency No. 4-H-350-0069-98.

A copy of the agency's notice must be sent to the Compliance Officer as

referenced below.

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.

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 terminated 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:

November 4, 1999

DATE Carlton

M. Hadden,

Acting Director

Office of Federal Operations 1John H. Brown v. United States Postal

Service, EEOC Appeal No. 01985217 (June 14, 1999).

2Appellant also states that in a separate letter dated December 12,

1997, pertaining to Agency No. 4-H-350-0069-98, that he was provided

information between November 3 and 10, 1997, which caused him to believe

that his nonselection for a Vice-President Award in Fiscal Year 1996

was an act of reprisal.