Kathy L. Clark, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980170 (E.E.O.C. Nov. 4, 1999)

05980170

11-04-1999

Kathy L. Clark, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kathy L. Clark, )

Appellant, )

) Request No. 05980170

v. ) Appeal No. 01972425

) Agency No. 4-J-604-1083-94

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

Appellant timely initiated a request to the Commission to reconsider

its decision in Clark v. United States Postal Service, EEOC Appeal

No. 01972425 (October 24, 1997). EEOC regulations provide that the

Commission may, in its 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: (1) 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); (2) 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); or

(3) the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

set forth below, appellant's request is denied.

BACKGROUND

Appellant filed formal complaints alleging that she had been

discriminated against on the bases of sex (female) and reprisal (prior

EEO activity) when: (1) on March 23, 1994, her tour of duty hours were

changed; (2) on August 22, 1994, she was denied a schedule change; and (3)

on October 20, 1994, she was harassed at work. All three allegations were

accepted for investigation. Upon completion of the investigation, the

case was assigned to an Administrative Judge (AJ). During the pre-hearing

conference, appellant raised additional allegations. Specifically,

she alleged that she was: (1) denied an opportunity for promotion;

(2) not promoted to the Supervisor of Training position awarded to

another employee (Person A); and (4) not paid at the same rate of pay

that a male employee received when she performed the same type of work.

Once the new allegations were raised, the AJ remanded the case to the

agency so that the newly raised issues could be processed in accordance

with applicable regulations.

In its final decision, the agency accepted all of the new allegations

for investigations except the ones relating to denial of promotion.

The denial of promotion allegations were dismissed pursuant to 29

C.F.R. �1614.107(b) when the agency concluded that appellant failed to

contact an EEO counselor within the forty-five day limitations period.

In its decision, the agency noted that appellant, in her affidavit, stated

that she believed that she was subject to discrimination in early 1993,

when she was denied the opportunity to bid on the EAS-15 (Supervisor

of Training) position. According to the agency and materials available

within the investigative file, the EAS-15 position was awarded to Person

A on February 6, 1993. The agency argued that, that being the case,

appellant's March 31, 1994 contact with an EEO counselor was untimely.

The agency reasoned that, regarding the allegations at issue, she should

have contacted a counselor no later than March 23, 1993 instead.

On appeal, appellant argued that she did not contact an EEO counselor

until March 1994 because she was not affected by the placement of Person

A until March 1994. Specifically, she asserted that the placement of

Person A in the position was concealed from her until March 1994 and,

although Person A was placed in the position effective in February 1993,

his placement was done incrementally from February 1993 to March 1994.

In addition, appellant contended that she was misled by management

when she was assured that Person A's new position was non-supervisory

and would never affect her. Finally, appellant argued that the agency

waived the right to raise the issue of timeliness because during the

counseling phase, the issue was accepted for investigation, resulting

in three years having elapsed since the filing of her complaint.

In our previous decision, we ruled that the evidence reflected that

appellant should have had a reasonable suspicion of discrimination months

prior to her initial counselor contact. As such, we found that pursuant

to the reasonable suspicious standard,<1> her March 1994 contact was

well beyond the time period for timely counselor contact.

ANALYSIS AND FINDINGS

In her request to reconsider (RTR), appellant argued that our previous

decision should be reversed, pursuant to 29 C.F.R. 1614.407(c)(2),

because it misapplied/misinterpreted the Commission's guidelines

as set out in Management Directive 110, Chapter 4, Section III C.

This portion of the Management Directive addresses the processing of

partially dismissed complaints and discusses two scenarios: (1) where

the partial dismissal is reversed by the Commission; and (2) where the

partial dismissal is upheld but the remainder of the complaint is to

be processed administratively. Considering the procedural history of

this particular case, the Commission presumes that the second scenario

is what is at issue here. Upon examining this portion of the Directive,

we hold that our previous decision did not misapply or misinterpret any

of the Commission's policies, procedures, or guidance relating to the

partial dismissal of complaints.

CONCLUSION

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

decision, and the entire record, the Commission finds that appellant's

request does not satisfy the criteria of 29 C.F.R. �1614.407(c), and it

is the decision of the Commission to deny the request. The decision of

the Commission in EEOC Appeal No. 01972425 remains our final decision

in this matter.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

It is the position of the Commission that you have the right to file a

civil action in an appropriate United State District Court WITHIN NINETY

(90) DAYS from the date that you receive this decision. You should be

aware, however, that courts in some jurisdictions have interpreted the

Civil Right's 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. 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 (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:

Nov. 4, 1999

______________ __________________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat1 See, Ball v. United States Postal Service,

EEOC Request No. 05880247 (July 6, 1998) (adopting a �reasonable

suspicion� standard, as opposed to a �supportive facts� standard,

when determining when the forty-five day limitation period is

triggered).