05991129
11-05-1999
Loretta Doody, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Loretta Doody v. United States Postal Service
05991129
November 5, 1999
Loretta Doody, )
Appellant, )
)
v. ) Request No. 05991129
) Appeal No. 01990655
William J. Henderson, ) Agency No. 4B-060-0081-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On September 3, 1999, Loretta Doody (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Loretta Doody v. William J. Henderson, Postmaster
General, United States Postal Service, EEOC Appeal No. 01990655 (July
30, 1999). EEOC Regulations provide that the Commissioners may,
in their 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 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); and the
previous 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 herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of one of the issues in appellant's complaint.
BACKGROUND
During the period in question, appellant was employed as a Letter
Carrier Technician at the agency's facility in Hamden, Connecticut.
Appellant filed a formal complaint in August 1998 in which she raised
four issues (Issues 1 through 4), one of which involved her observation
on March 7, 1998, that a co-worker was allowed to wear improper footwear.
In arguing that this was discriminatory, appellant notes that, in 1991,
she was sent home for wearing footwear that was deemed improper. In its
final decision, the agency accepted Issues 1 through 3 but dismissed
Issue 4 for stating the same claim as one that had already been decided.
Specifically, the agency submitted evidence indicating that appellant
filed a complaint in 1991 in which she raised the incident where she
was sent home for wearing improper footwear. The record reveals that
the complaint was resolved via a settlement agreement dated September
26, 1991. Appellant appealed the FAD and the prior decision affirmed
the dismissal of Issue 4. Specifically, the decision found that an
allegation that a comparative employee was treated differently does not
state an independent claim of discrimination when the underlying incident
is already the subject of another complaint.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss an allegation that fails to state a claim or states the same claim
that is pending before or has been decided by the agency or Commission.
In this case, the Commission agrees that, by itself, Issue 4 does not
state an actionable claim, to the extent it merely describes treatment
accorded another employee. Furthermore, although the 1991 incident does
state a claim, this incident was raised in appellant's 1991 complaint.
As noted, that complaint was resolved by the September 1991 settlement
agreement. Accordingly, the Commission finds that Issue 4 was properly
dismissed.<0>
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c).
Therefore, it is the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01990655 (July 30, 1999)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this 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 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. 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. 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
01 In her request for reconsideration, appellant implies that the
settlement agreement has been breached and that she wants her 1991
complaint reinstated. If appellant believes the agreement has been
breached, she is advised to notify the agency's EEO Director of the
alleged noncompliance in accordance with the procedures set forth at 29
C.F.R. �1614.504(a). For purposes of timeliness, the date appellant filed
her request shall be the date on which she is deemed to have raised the
breach allegation, unless she raised it prior to that time. See Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).