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.