Nancy A. Garrett, Appellant,v.William J. Henderson, Postmaster General, States Postal Service, ______________________________)

Equal Employment Opportunity CommissionSep 30, 1999
05980040 (E.E.O.C. Sep. 30, 1999)

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.