05990460
11-04-1999
Rhodora Blanks, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas), Agency.
Rhodora Blanks v. United States Postal Service
05990460
November 4, 1999
Rhodora Blanks, )
Appellant, )
) Request No. 05990460
v. ) Appeal No. 01982872
) Agency No. 4E-800-0080-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Areas), )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On March 4, 1999, Rhodora Blanks (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Rhodora Blanks v. William J. Henderson,
Postmaster General, United States Postal Service, EEOC Appeal No. 01982872
(February 26, 1999). 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: (1) 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); (2) the previous decision involved
an erroneous interpretation of law or regulation, or material fact, or
a misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and
(3) the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is granted.
BACKGROUND
In the previous decision, the Commission affirmed a final agency decision
which found that appellant's initial EEO contact on December 3, 1997,
was untimely since appellant alleged that she was denied a career
appointment on October 2, 1997. The Commission, inter alia, found the
initial contact occurred 62 days following the alleged discriminatory
employment action.
On request for reconsideration, appellant claims that she was interviewed
on October 2, 1997, and notified of the denial of her career appointment
on November 4, 1997. Specifically, appellant states that she advised
her interviewer that her previous appointment had been terminated and
that she had a pending EEO complaint against her prior supervisor.
According to appellant, the interviewer was unable to immediately
confirm what appellant told her, and needed a statement from appellant's
supervisor confirming that her previous appointment had ended before she
could consider her for the career position. Appellant further claims that
she was notified of the denial of her appointment on November 4, 1997.
Appellant stated, on appeal, that she was interviewed on October 2,
1997, and was advised of the denial of her appointment, for the first
time, on November 4, 1997. Upon review of the record below, we find that
while the EEO Counselor framed the issue as occurring on October 2, 1997,
appellant always indicated that the denial occurred on November 4, 1997.
Appellant's handwritten statement which is found in the Pre-complaint
Counseling form states that on "November 4, 1997, the following occurred:
I was denied a career mail handlers position that I qualified for on
October 2, 1997 ..." In addition, in her formal EEO Complaint, appellant
notes "11-04-97" as the date on which the alleged act of discrimination
took place. We find that the clear weight of the evidence indicates
that since the pre-Complaint stage, appellant has always maintained
the date of the alleged discrimination occurred on November 4, 1997.
Accordingly, we find that her initial EEO Counselor contact on December 3,
1997, was timely.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is the
decision of the Commission to GRANT appellant's request. The decision of
the Commission in Appeal No. 01982872 (February 26, 1999) and the Final
Agency Decision is REVERSED. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E1092)
The agency is ORDERED to process appellant's allegation, which shall
be framed as occurring on November 4, 1997, in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to appellant that it has
received the remanded allegation within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant of
the appropriate rights within one hundred fifty (150) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance officer, as referenced below.
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 (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
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:
11/04/99
Date Frances M. Hart
Executive Officer
Executive Secretariat