05960830
08-17-2000
Michael S. Gale, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael S. Gale v. United States Postal Service
05960830
August 17, 2000
Michael S. Gale, )
Complainant, )
)
v. ) Request No. 05960830
) Appeal No. 01956004
William J. Henderson, ) Agency No. 1B-011-1054-95
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On August 28, 1996, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Michael
S. Gale v. Marvin T. Runyon, Jr., Postmaster General, United States
Postal Service, EEOC Appeal No. 01956004 (August 19, 1996).<1> The
Commission may reconsider any previous decision where the party making
the request demonstrates that: (1) the previous decision involved a
clearly erroneous interpretation of material fact or law; or (2) the
decision will have a substantial impact on the policies, practices,
or operation of the agency. 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b).
For the reasons set forth herein, we will GRANT the agency's request.
ISSUE PRESENTED
Whether our previous decision properly reversed the agency's dismissal
of complainant's complaint for raising a matter that had not been brought
to the attention of an EEO counselor.
BACKGROUND
Complainant contacted a counselor, claiming that, on May 8, 1995, his
supervisor and several co-workers made disparaging remarks about his
work performance. The counselor assigned to complainant's case the
number 1-B-011-1054-95 (1054). The pre-complaint counseling report
corresponding to case no. 1054 indicated that complainant was claiming
discrimination in connection with being singled out and harassed because
of his work performance.
In the formal complaint corresponding to case no. 1054 (the instant
complaint), however, complainant claimed that on June 1, 1995, his
supervisor issued a defaming and libelous statement that caused him harm
and led to disciplinary action being taken against him. No mention was
made of the claim pertaining to the May 8th incident. The EEO counselor
who handled complainant's case confirmed in an affidavit that complainant
did not set forth the May 8th incident in complaint no. 1054, and that
he did not amend his complaint to include the May 8th claim when he was
offered the opportunity to do so.
The agency issued a final decision dismissing complaint no. 1054 on the
grounds that it raised an claim not brought to the attention of an EEO
counselor and was not like or related to a matter brought to the attention
of an EEO counselor. The agency stated that, although complainant was
raising the June 1st defamation incident in his formal complaint, he
sought counseling regarding harassment that purportedly occurred on May
8th. The agency further emphasized that complainant was given a final
interview and notice on the May 8th claim, not the June 1st claim.
Complainant contacted a counselor a second time. The counselor assigned
the number 1-B-011-1060-95 (1060) to this second case. Complainant claimed
that on June 1, 1995, his supervisor and co-workers made accusations
against him regarding his work habits. He also claimed that, on June
21st, he was given a letter of warning because of those accusations.
He repeated these claims in the formal complaint corresponding to case
no. 1060. The agency accepted and processed both of the claims contained
in complaint no. 1060.
On appeal, complainant contended that the counselor lost track of the May
8th claim in complaint no. 1054. He sought to have the May 8th claim
reinstated. Our previous decision found that the agency improperly
dismissed complaint no. 1054. The decision noted that the June 1st
claim raised in complaint no. 1054 was brought to the attention of a
counselor in complaint no. 1060. We also ordered the agency to clarify
whether it was processing complaint no. 1060, and to decide whether to
accept or dismiss complaint no. 1054.
In its request for reconsideration, the agency submitted a copy of its
letter accepting complaint no. 1060. This letter clearly establishes that
the agency accepted and was processing the June 1st and June 21st claims
that were set forth in complaint no. 1060. The agency also reiterated
its earlier position that, in complaint no. 1054, complainant filed a
complaint on the June 1st claim when he had been counseled on the May
8th claim.
ANALYSIS AND FINDINGS
In both complaint no. 1054 and complaint no. 1060, complainant raised the
same claim of discriminatory harassment, namely that on June 1, 1995,
his supervisor and several of his co-workers made false and defamatory
statements about him that led to his being issued a letter of warning.
The pre-complaint counseling report for complaint no. 1060 establishes
that complainant did receive counseling on the June 1st claim. This
claim was accepted and processed in complaint no. 1060. To the extent
that complainant raises the June 1st claim in complaint no. 1054, the
agency is required to dismiss this complaint under 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1) <2>), on the grounds that it raises the same claim that
is pending before the agency in complaint no. 1060.
In our previous decision, we noted that it was unclear whether the
agency was processing complaint no. 1060. In response to our order,
the agency submitted a copy of the letter indicating its acceptance of
complaint no. 1060. We therefore find that the agency has complied with
our order directing it to report on the status of complaint no. 1060.
Neither the agency nor our prior decision determined what became of the
May 8th claim. The counseling documentation corresponding to complaint
no. 1054 clearly establishes that complainant did bring the May 8th
claim to the attention of an EEO counselor. In the formal complaint
corresponding to case no. 1054, however, complainant did not raise the
May 8th claim. Complainant argued on appeal that the counselor "lost"
this claim. The counselor stated in a sworn affidavit, however, that he
pointed out to complainant that he was not raising the May 8th claim.
The counselor further stated that complainant, for reasons that remain
unexplained, chose to focus on the June 1st claim in complaint no. 1054,
rather than on the May 8th claim. The counselor also noted that when
he asked complainant's representative why he did not raise the May 8th
claim in the formal complaint, the representative "became very hostile."
It appears that complainant chose not to pursue the May 8th claim
at the formal stage and later changed his mind. The agency notified
complainant of his right to formalize complaint no. 1054 on July 5,
1995, after he had been counseled on the May 8th claim. He would have
had to file a formal complaint on the May 8th claim by July 20, 1995.
Formal complaint no. 1054, filed on July 11, 1995, makes no mention
of the May 8th claim. There are no other indications in the record
that complainant amended his complaint to include the May 8th claim.
The record thus does not support complainant's argument that the counselor
"lost" the information pertaining to the May 8th claim.
CONCLUSION
After a review of the agency's request to reconsider, complainant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request meets the criteria of 29
C.F.R. �1614.405(b). It is therefore the decision of the Commission
to GRANT the agency's request. The decision of the Commission in EEOC
Appeal No. 01956004 is REVERSED to the extent that it requires the agency
to determine whether to accept or dismiss complaint no. 1B-011-1054-95.
The agency's final decision dismissing complaint no. 1B-011-1054-95
is AFFIRMED. There is no further right of administrative appeal from
the decision of the Commission on a request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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:
__08-17-00_______ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.
2Formerly 29 C.F.R. � 1614.107(a).