Kenneth E. Clark, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
05a00237 (E.E.O.C. Aug. 9, 2000)

05a00237

08-09-2000

Kenneth E. Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kenneth E. Clark, )

Complainant, ) Request No. 05A00237

) Appeal No. 01992080

v. ) Agency No. 4-G-720-1230-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On December 2, 1998, Kenneth E. Clark (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Kenneth E. Clark v. United States

Postal Service, EEOC Appeal No. 01992080 (October 21, 1999).<1> EEOC

regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.405(b)). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following two criteria: the appellate decision involved a clearly

erroneous interpretation of material fact or law; or the decision will

have a substantial impact on the policies, practices or operations of

the agency. Id. For the reasons set forth herein, complainant's request

is granted.

BACKGROUND

In its final decision, the agency accepted one claim for investigation,

defined as: complainant was not given an opportunity to accept his Bulk

Mail Clerk position when it was posted for a bid. In our previous

decision, the Commission found that the agency properly defined

the complaint. In this previous decision, the Commission identified

complainant's arguments as alleging: �(1) [complainant] was not given

an opportunity to accept a bulk mail position by the national and local

union agreements; and (2) the Postmaster wanted a female clerk with more

seniority to bid in [complainant's] job, and never gave [complainant]

the same opportunity on his original job as was given to a female clerk.�

The Commission found that these arguments involved the treatment of

comparative employees, and the reasoning behind the agency's failure

to place complainant in the position; the assertions were not found to

raise any additional allegations of discrimination.

On request for reconsideration, complainant claims, through his attorney,

that the Commission misinterpreted his claims. Complainant asserts that

his bulk-mail position was abolished, but then re-posted several days

later with different duty hours and �add-ons.� Complainant then argues

that the collective bargaining agreement entitled him to an opportunity

to accept the revised position without bidding for it, but he was not

given such an opportunity. Also, complainant contends that he did not

receive the position once it was re-posted for a bid. By contrast,

complainant argues that when a female co-worker's bulk-mail position

was abolished but re-posted with add-ons; she was allowed to accept the

position without bidding.

ANALYSIS AND FINDINGS

After reviewing the record in light of complainant's arguments,

we conclude that the Commission's previous decision misinterpreted

complainant's arguments. The Commission finds that the claims to be

processed should be identified as follows:

Whether complainant was subjected to disparate treatment in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. on the basis of sex when (1) he was not given an opportunity

to return to his position prior to the posting of the position with

�add-ons,� and (2) he was not selected for the position after he bid on

the position once it was re-posted.

Whether a similarly-situated female was allowed to accept her position

is relevant to complainant's disparate treatment claim, as stated above,

but does not form the basis of a separate claim.

CONCLUSION

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

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

complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to GRANT the complainant's request.

The decision of the Commission in Appeal No. 01992080 (October 21, 1999)

and the final agency decision is REVERSED. The claims, as defined above,

are REMANDED to the agency for investigation. There is no further right

of administrative appeal on the decision of the Commission on a Request

to Reconsider.

ORDER (E0400)

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

August 9, 2000

Date Frances M. Hart

Executive Officer

Executive Secretariat

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.