Kim D. Newbold, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
05970887 (E.E.O.C. Mar. 29, 2000)

05970887

03-29-2000

Kim D. Newbold, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kim D. Newbold v. United States Postal Service

05970887

March 29, 2000

Kim D. Newbold, )

Complainant, )

) Request No. 05970887

v. ) Appeal No. 01962371

) Agency No. 4-E-840-1038-94

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On July 2, 1997, Kim D. Newbold (complainant) initiated a request to

the Equal Employment Opportunity Commission (Commission) to reconsider

the decision in Kim D. Newbold v. United States Postal Service, EEOC

Appeal No. 01962371 (June 11, 1997).<1> EEOC Regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision where the requesting party demonstrates that: (1)

the appellate decision involved a clearly erroneous interpretation

of material fact or law; or (2) the appellate decision will have a

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

agency. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.405(b)).

Complainant requests that the Commission reconsider the remedy which

the previous decision ordered. In particular, complainant argues that

the previous decision erroneously stated that he had elected specific

performance and not reinstatement of his complaint regarding his breach

of settlement allegation. Upon review of the record, the Commission finds

that complainant's request regarding specific performance or reinstatement

was unclear and a reasonable person could have interpreted complainant's

request in the same manner as the previous decision.<2> Accordingly,

the Commission finds that the previous decision did not involve a

clearly erroneous interpretation of material fact or law. Further, the

Commission notes that the previous decision found that the agency failed

to comply with only one of the provisions of the settlement agreement.<3>

The previous decision found that the agency had placed complainant in

an appropriate position and paid for complainant's attorney fees arising

from the settlement agreement. Since the parties have already performed

several terms of the settlement agreement, specific enforcement, rather

than reinstatement of the complaint is the appropriate remedy. Rawlings

v. Department of Justice, EEOC Request No. 05910554, (August 29, 1991).

CONCLUSION

Therefore, after a review of complainant's request for reconsideration,

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

complainant's request does not meet the criteria of 29 C.F.R. �

1614.405(b), and it is the decision of the Commission to deny

complainant's request. The decision of the Commission in EEOC Appeal

No. 01962371 remains the Commission's final decision. 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 take the following remedial action:

1. Within sixty (60) calendar days of the date this decision becomes

final, the agency shall inform the complainant in writing of the reasons

for the changes in volume figures as it pertained to his evaluation at

the Cottonwood Station.

2. When seeking to determine the reasons for the changes in the volume

figures, the agency shall consider the complainant's appeal submissions,

including his description of the effect of auxiliary office time

on relevant statistics. See the complainant's submission entitled

"Workload Reports."

3. The agency is further 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.

ATTORNEY'S FEES

If appellant has been represented by an attorney (as defined by 29

C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable

attorney's fees incurred in the processing of the breach allegation. The

award of attorney's fees shall be paid by the agency. The attorney

shall submit a verified statement of fees to the agency -- not to the

Equal Employment Opportunity Commission, Office of Federal Operations --

within thirty (30) calendar days of this decision becoming final. The

agency shall then process the claim for attorney's fees in accordance

with 29 C.F.R. � 1614.501.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

March 29, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________ ________________________

Date

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.

2Complainant states that he requested "all terms of the settlement

agreement be specifically implemented . . . . If the agency is unwilling

to comply, [complainant requested] that the complaint be reinstated for

further processing from the point at which processing ceased."

3The previous decision found that the agency had not complied with the

provision in which the agency agreed to inform complainant of the reasons

for the changes in volume figures as it pertained to his evaluation at

the agency's facility.