Melvin C. Lewis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.

Equal Employment Opportunity CommissionOct 20, 2000
05a00534 (E.E.O.C. Oct. 20, 2000)

05a00534

10-20-2000

Melvin C. Lewis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/West Region), Agency.


Melvin C. Lewis v. United States Postal Service

05A00534

October 20, 2000

.

Melvin C. Lewis,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Pacific/West Region),

Agency.

Request No. 05A00534

Appeal No. 01991407

Agency No. 1F-901-1268-95

Hearing No. 340-97-3542X

DECISION ON REQUEST FOR RECONSIDERATION

On March 28, 2000, Melvin C. Lewis (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Melvin C. Lewis v. United States Postal

Service, EEOC Appeal No. 01991407 (February 23, 2000), which affirmed the

Administrative Judge's finding of no discrimination in this case.<1> In

his complaint, complainant alleged that he was discriminated against in

retaliation for prior EEO activity when the agency denied his requests

for a change of tour. EEOC regulations provide that the Commission

may, in its discretion, reconsider any previous Commission decision.

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.

In the previous decision, the Commission affirmed the Administrative

Judge's finding of no discrimination in this matter. The Administrative

Judge (AJ) recommended that the agency dismiss the complaint because

it failed to state a valid claim under Title VII. The AJ concluded

that complainant's claim rested entirely on his belief that the

agency had denied his requests for change of tour in retaliation for

his participation in the negotiated union grievance process and not

for his participation in the federal EEO process. The AJ noted that

complainant had not raised discrimination in his union grievance and

further stated that complainant had not engaged in EEO activity prior

to the current complaint. On request for reconsideration, complainant

contends that he had participated in prior EEO activity and submits

evidence to substantiate his contention.

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. On reconsideration, complainant demonstrates that he had

engaged in protected EEO activity prior to instituting the current

complaint. We also take note that the Commission's records establish

that complainant filed a prior EEO complaint on February 12, 1992,

concerning the termination of a detail. See Melvin C. Lewis v. United

States Postal Service, EEOC Appeal No. 01942520 (March 28, 1995).

Since both the AJ's recommended decision and our prior appeal decision

misstated a material fact regarding complainant's prior participation in

EEO activity, we grant complainant's request to reconsider. Nonetheless,

the record establishes that agency officials denied complainant's

requests for a change of tour on the basis that his assigned tour was

set as a result of a Step 3 settlement agreement entered into under

the negotiated grievance process. After reviewing the record as whole,

we agree with the AJ and the prior decision insofar as they found that

complainant rests his entire case on the claim that the refusal to change

his tour assignment constitutes retaliation for his participation in

the negotiated grievance process and not for his past EEO activity.

See Investigative Report, Complainant's Affidavit. As a result, we

find that complainant failed to establish that the agency's refusal to

change his tour duty constituted retaliation for his prior protected

EEO activity. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 within ninety (90) calendar days from the date that you receive

this decision. 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 20, 2000

Date

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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.