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).