05980040
09-30-1999
Nancy A. Garrett, Appellant, v. William J. Henderson, Postmaster General, States Postal Service, ______________________________)
Nancy A. Garrett, )
Appellant, ) Request No. 05980040
) Appeal No. 01960422
v. ) Agency No. 4H-300-1007-95
) Hearing No. 110-95-8216X
William J. Henderson, )
Postmaster General, ) United
States Postal Service, ) Agency.
)
______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On October 14, 1997, the United States Postal Service (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider the
decision in Nancy A. Garrett v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Appeal No. 01960422 (September 5,
1997), received on September 11, 1997.<1> 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 a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). The agency's
request is denied; however, the Commission, on its own motion, will
reconsider the previous decision.
At the time of her complaint, appellant (40) was a Rural Carrier Associate
(RCA) at the Rome, Georgia Post Office. She filed a formal complaint
alleging discrimination on the basis of age when, on October 1, 1994,
her seniority standing was changed which resulted in her auxiliary route
being awarded to an employee who was 45. According to the record,
the agency, in 1988, amended its collective bargaining agreement by
including a "tie-breaker" provision. This provision called for using
the "earliest date of birth" in order to establish seniority between
two employees with the same length of service. Although the provision
had been added in 1988, appellant continued being treated as the senior
employee until 1994 when the matter was brought to the attention of the
current Postmaster by state and local union officials.
The agency accepted appellant's complaint and conducted an investigation.
At the conclusion of the investigation, appellant requested an
administrative hearing before an EEOC Administrative Judge (AJ). On July
19, 1995, the AJ, without a hearing, issued a recommended decision finding
that appellant had been discriminated against because of her age. The AJ
found that using age in this manner, in order to determine seniority,
violated the Commission's regulations which interpret the ADEA. In a
final decision dated September 22, 1995, the agency rejected the findings
and conclusions of the AJ, and issued a finding of no discrimination.
The previous decision, in reversing the agency, affirmed the findings and
conclusion of the AJ. Both the AJ and the previous decision, however,
acknowledged that the Seventh Circuit, in Hamilton v. Caterpillar
Incorporated, 966 F.2d 1226 (7th Cir. 1992), found that 29 C.F.R. �1625.2
cannot be read to authorize age discrimination complaints such as that
presented here. Notwithstanding this fact, the previous decision found
that since the EEOC was the primary agency charged with the implementation
of the ADEA, its interpretation was entitled to greater deference.
In its request to reconsider (RTR), the agency reiterated its contention
that the decision in Hamilton should control here. According to the
agency, there is no evidence that it was Congress' intention to authorize
"reverse" age discrimination cases. We also note that the Union submitted
an amicus curiae memorandum that supported the agency's position.
To a large extent, the Union's memorandum restates the agency's
interpretation of Hamilton. We, however, note, in pertinent part,
the Union's position that the previous decision will have a substantial
precedential implication because:
[h]undreds, if not thousands of rural letter carriers employed by the
agency and governed by the collective bargaining agreement share the same
date of hire as one or more other rural carriers, and are thus subject
to application of the 'earliest date of birth' seniority provision.
The Commission's decision, should it stand, could result in substantial
disruptions in the assignments and working conditions of rural letter
carriers nationwide.
Finally, the Union noted that the previous decision did not bar the
parties from negotiating an alternate "tie-breaking" methodology to
replace the current date-of-birth provision.
Appellant opposed the Commission's consideration of the Union's amicus
curiae memorandum. According to appellant, the Union "[e]ntered nothing
new into this case other than the desire to have the Commission change
the decision." Appellant also maintained that the Union was attempting
to intimidate the Commission.
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is
met. The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A reconsideration request is not merely a form
of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990). Instead, it is an opportunity to submit newly
discovered evidence, not previously available; to establish substantive
error in a previous decision; or to explain why the previous decision
will have effects beyond the case at hand. Lyke v. USPS, EEOC Request
No. 05900769 (September 27, 1990).
The Commission finds that the agency's request for reconsideration fails
to meet the criteria of 29 C.F.R. �1614.407(c). It is therefore the
decision of the Commission to deny the request. We note in this regard
that the agency's contentions were already considered and addressed by
both the AJ and the previous decision. The Commission has previously
held that simply rearguing the facts of a case is improper in a request
for reconsideration. See Bartlomain v. USPS, EEOC Request No. 05910436
(October 10, 1991).
Due to the nature of this case, we find it appropriate to consider
the Union's memorandum. We, however, are not persuaded by the Union's
position. The ADEA specifically provides that "[a]ll personnel actions
affecting employees or applicants for employment who are at least 40 years
of age . . . shall be made free from any discrimination based on age."
Consequently, we do not find that a violation of the ADEA should be
allowed to continue merely because of speculation that an adverse ruling
could result in a disruption of the assignments of RCAs and impact mail
service in the United States. Based on the Union's apparent willingness
to negotiate an alternate "tie-breaking" methodology, we are confident
that the problems anticipated by the Union can be avoided. In order
to provide the agency with sufficient time to negotiate a "tiebreaker,"
the Order below provides the agency 120 days within which to negotiate
an alternate "tie breaker."
Notwithstanding the above, however, the Commission will reconsider
the previous decision on its own motion. We do so in order to modify
its Order. Where discrimination is found, the injured party is to be
placed, as near as may be, in the situation they would have occupied
if the wrong had not been committed. Albemarle Paper Company v. Moody,
422 U.S. 405, 418-19 (1975). The discriminatory event in this case was
the agency's use of age as a "tie-breaker," not the fact that appellant's
seniority standing was adjusted. Consequently, if the agency fashioned a
non-discriminatory method for establishing seniority between two employees
with the same length of service, appellant would be in the same position
she would have been in absent age being used as a factor.
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny the request. The Commission,
however, has decided to reconsider the previous decision on our
own motion, for the reasons provided above. The decision in EEOC
Appeal No. 01960422 (September 5, 1997), as MODIFIED below, remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request to reconsider.
ORDER
The agency is ORDERED to take the following remedial action:
(A). Within 120 days from the date this decision becomes final, the
agency is directed to fashion an alternate "tie-breaker," other than
the earliest date of birth. Thereafter, the agency shall redetermine
appellant's placement on the seniority list using the alternate
"tie-breaker."
(B). In the event that appellant prevails after the application of an
alternate "tie-breaker," the agency shall award appellant all benefits she
would have been entitled to had she been placed ahead of the comparative
employee on the seniority list as of October 1, 1994.
(C). The agency shall cease using an employee's date of birth as a
tie-breaker, when determining seniority list placement, if such actions
involve employees over the age of 40.<2>
(D). The agency shall post at its facility in Rome, Georgia copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
(E). The agency is further directed to submit a report of compliance,
as provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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
__09-30-99____ ______________________
Date Frances M. Hart
Executive Officer
Executive Secretariat 1EEOC regulation 29 C.F.R. �1614.604(b)
provides that "[a] document shall be deemed timely if it is
delivered in person or postmarked before the expiration of
the applicable filing period, or, in the absence of a legible
postmark, if it is received by mail within five days of the
expiration of the applicable filing period." In the present
case, the agency's request to reconsider (RTR) was received on
October 14, 1997, in an envelope that did not bear a postmark.
Since the filing period for the agency expired on October 11,
1997, the agency's RTR is timely.
2As noted above, the relief set forth in paragraphs A and B of the
Order above is specifically designed to place the appellant in the
position she would have enjoyed had she not been discriminated against.
Nothing in this decision, however, should be construed as indicating that
employees who were affected by the "tie-breaking" system in the past,
but chose not to file EEO complaints, are entitled to similar relief.