05a00062-63
05-11-2000
Mark D. Shenkan, Complainant, William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Region), Agency.
Mark D. Shenkan, )
Complainant, ) Request No. 05A00062
) 05A00063
) Appeal No. 01985106
) 01992808
William J. Henderson, ) Agency No. 4C164003198
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Region), )
Agency. )
___________________________________ )
DECISION ON REQUEST FOR RECONSIDERATION
On October 13, 1999, Mark D. Shenkan (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Mark D. Shenkan v. United States Postal
Service, EEOC Appeal Nos. 01985106 & 01992808 (September 14, 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 29 C.F.R. �
1614.405(b)). The party requesting reconsideration must submit
written argument or evidence that 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
The previous decision affirmed the agency's dismissal of complainant's
claims that he was subjected to discrimination on the basis of his
disability when he was refused employment on November 28, 1995 and on an
unspecified date in November 1997 (claim nos. 1 and 2). These claims were
dismissed for failure to timely contact an EEO Counselor. The previous
decision also affirmed the agency's finding of no discrimination on a
third claim that involved complainant's failure to receive a response
to his request for employment reconsideration, noting that such an
allegation failed to state a claim.<2>
On request for reconsideration, complainant argues that the Commission
misinterpreted his claims.<3> He alleges that his claims are based
on the fact that the agency has an ongoing policy of refusing to make
accommodations for temporary casual positions. Complainant supports this
claim with an affidavit from his attorney who alleges that on August 3,
1997, an agency official told him that the agency's policy is to reject
temporary, casual applicants who have a disability due to the expense
and time involved in processing and training.
The agency offers no response to complainant's request for
reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument that tends to establish that at least one of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to be
reconsidered, the request must contain specific information that meets
the requirements of this regulation. For the reasons set forth below,
the Commission grants complainant's request for reconsideration.
The previous decision turned on whether complainant's claims constituted
a continuing violation. On review of the record, however, we find that
a misinterpretation of material fact was made. Commission precedent
holds that when a claim involves a systemic violation, there need not
be an identifiable discrete act of discrimination transpiring within
the limitations period. See Gills v. United States Postal Service,
EEOC Request No. 05970971 (August 18, 1997), citing Sabree v. United
Brotherhood of Carpenters and Local Joiners, 921 F.2d 396, 400 (1st
Cir. 1990). According to the Sabree court, �[a] systemic violation has
its roots in a discriminatory policy or practice; so long as the policy or
practice itself continues into the limitations period, a challenger may
be deemed to have filed a timely complaint.� Sabree, 921 F.2d at 400,
fn. 7.
In the case at hand, complainant's claim is that the agency has a policy
of not hiring people with disabilities for casual carrier jobs, i.e.,
that the agency has a discriminatory policy that is ongoing, continuing
from before complainant applied for a casual carrier appointment in
November 1995, to the present. Complainant supports this claim through an
affidavit from his attorney who alleges that an agency official informed
him of this policy. A thorough review of the record reveals that the
agency did not deny that such a policy exists. Complainant's claims
that he was denied employment as a casual mail carrier on November 28,
1995 and on an unspecified date in November 1997 due to the agency's
discriminatory policy of not hiring disabled applicants for these
positions are therefore timely.
Complainant's related claim that he received no response from the agency
to his February 9, 1998 request to reconsider the agency's denial of
employment, while not stating a separate claim, shall be considered in
the investigation of complainant's other claims.
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 Nos. 01985106 &
01992808 (September 14, 1999) and the final agency decision in regard
to claim nos. 1 and 2 are REVERSED. These claims are REMANDED to the
agency for further processing in accordance with the ORDER below and
applicable regulations. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E1199)
The agency is ORDERED to process the remanded claims 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 an
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).
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:
May 11, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On 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.
2 The previous decision also reversed and remanded the agency's
dismissal of a claim concerning an improper request for medical evidence.
This portion of the prior decision is not at issue in this decision.
3 In the instant case, complainant submitted two requests for
reconsideration for the above appeal numbers notwithstanding the fact
that the previous decision consolidated them. Therefore, in considering
the requests, the Commission will treat them as one and issue only one
decision.