05981172
11-04-1999
Shazadi A. Malik, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shazadi A. Malik v. United States Postal Service
05981172
November 4, 1999
Shazadi A. Malik, )
Appellant, )
) Request No. 05981172
v. ) Appeal No. 01975579
) Agency No. 1K-221-0078-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On September 19, 1998, Shazadi A. Malik (the appellant) timely initiated
a request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Shazi A. Malik v. William J. Henderson,
Postmaster General, United States Postal Service, EEOC Appeal No. 01975579
(August 31, 1998).<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). For the reasons stated below, appellant's
request is denied.
The issue presented is whether appellant's request for reconsideration
satisfies the requirements of 29 C.F.R. �1614.407(c).
Appellant filed a complaint on April 25, 1997, alleging discrimination
based on reprisal when:
1) although on December 5, 1996, she notified the Plant Manager regarding
an assault, on February 19, 1997, she became aware that the Plant Manager
failed to take proper action and became part of a chain of conspiracy
to deny her civil rights;
2) on December 10, 1996, the Manager Distribution Operations (MDO)
became part of a chain of conspiracy to deny her civil rights by allowing
another MDO to humiliate, harass, and embarrass her by removing her from
an acting supervisory position;
3) from December 10, 1996 through the present, management engaged in a
chain of conspiracy against her by denying her upward mobility training,
details, and acting supervisory positions;
4) on February 26, 1997, she was denied a schedule change; and
5) on April 11, 1997, she was denied the right to a fair and unbiased
investigation under 29 C.F.R. �1614.102(a)(2), 102(b)(5), 102(c)(5)
and 104(b).
The agency accepted allegation (4) for investigation. Allegations (1),
(2), and (3) were dismissed on the grounds that they stated the same
claims that were set forth in a complaint filed by appellant on February
27, 1997. Allegation (5) was dismissed on the grounds that it failed to
state a claim. The previous decision affirmed the dismissals.
On appeal, appellant argued, in large part, that allegations (1), (2),
(3), (4), and (5) were part of a continuing violation. According to
appellant, "the filing of this particular complaint is merely documenting
a continuing violation and establishing a claim as new discriminatory
facts . . . ." Appellant also maintained, with respect to allegation (3),
that "the facts and circumstances are different in this particular EEO
complaint than in [the prior complaint]," because the individuals who
performed the various management functions at her facility "constantly"
changed. Therefore, appellant seemed to imply that she had to repeatedly
file the same claim in order to account for these changes. Finally, with
respect to allegation (5), appellant maintained that she was aggrieved
because the EEO counselor failed to interview the Plant Manager regarding
her assault.
In her request to reconsider (RTR), appellant reiterated her claim that
her complaint constituted a continuing violation. She also argued the
merits of her allegations. The agency opposed appellant's RTR on the
grounds that she did not satisfy the criteria for reconsideration set
forth at 29 C.F.R. �1614.407(c).
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).
After a careful review of the record, the Commission finds
that appellant's RTR does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). At the outset, we note that the continuing violation
theory is not applicable here. Under the continuing violation theory,
the normal time limit for contacting an EEO counselor may be suspended if
certain criteria are established. Rowan v. Department of Transportation,
EEOC Request No. 05940661 (February 24, 1995). Here, the allegations at
issue were not dismissed on the grounds of untimely counselor contact.
The record indicates that appellant, on February 27, 1997, filed Complaint
No. 1-K-221-0058-97. She alleged discrimination based on race (Asian),
color (brown), religion (Muslim), national origin (Pakistani), sex
(female), age (41) and reprisal. Specifically, she argued that:
(1) on December 2, 1996, she was assaulted and harassed when she
was physically pushed out of the office by the Manager Distribution
Operations; told that she would not supervise again and threatened with
a letter of warning;
(2) although, on December 5, 1996, she notified the Plant Manager
regarding the matter of issue number one, on February 19, 1997, she
became aware that the Plant Manager failed to take proper action and
became part of a chain of conspiracy to deny her civil rights;
(3) on December 10, 1996, she was subjected to a hostile work environment
when she was removed from her acting supervisory position;
(4) from December 10, 1996 through the present, management engaged in a
chain of conspiracy against her by denying her upward mobility training,
details, and acting supervisory positions;
(5) on December 10, 1996, a Manager, Distribution Operations falsified
a higher level form regarding her; and
(6) on February 18, 1996, she was denied rights under 29
C.F.R. �1614.102(a)(2) and 105(d), when her complaint was intentionally
delayed in processing.
The agency accepted for investigation allegations (2), (3), (4),
(5), and that portion of allegation (1) pertaining to the alleged
assault. Allegation (6) and the remaining portions of allegation (1)
were dismissed. EEOC Regulation 29 C.F.R. �1614.107(a) provides that
the agency shall dismiss a complaint or a portion of a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. To be dismissed as the "same claim," the present
and prior complaints must have involved identical matters. It has long
been established that "identical" does not mean "similar." The Commission
has consistently held that in order for a complaint to be dismissed as
identical, the elements of the complaint must be identical to the elements
of the prior complaint in time, place, incident, and parties. See Terhune
v. USPS, EEOC Request No. 05950907 (July 18, 1997).<2>
We find that allegations (1), (2), and (3) of appellant's present
complaint are identical to allegations (1), (2), (3), and (4) of her
prior complaint. Furthermore, as noted above, appellant essentially
conceded that allegation (3) of her present complaint
stated the same claim as that raised in her prior complaint. Contrary to
appellant's opinion, however, she is under no obligation to periodically
resubmit the same allegation in order to account for new management
officials who may now be in place. Accordingly, the dismissal of
allegations (1), (2), and (3) was proper.
With respect to allegation (5), appellant maintained that the EEO
counselor's failure to interview her Plant Manager denied her a fair and
unbiased investigation. Because allegation (5) concerns the processing of
appellant's complaint, it may not form the basis of a separate allegation
of discrimination. See Trujillo v. Department of the Air Force, EEOC
Request No. 05950177 (June 13, 1996); EEOC MD (110), p.4-8, (October 22,
1992). Appellant must bring this matter to the agency official responsible
for the quality of complaint processing, who should earnestly attempt to
resolve appellant's dissatisfaction with the complaints process as early
as possible. Id. Accordingly, allegation (5) was properly dismissed on
the grounds that it failed to state a claim.
After a review of appellant's request to reconsider, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant'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 decision in EEOC Appeal No. 01975579 (August 31, 1998)
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.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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. 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 (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:
Nov. 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1We note that the previous decision misspelled appellant's first name.
2See also Russell v. Department of the Army, EEOC Request No. 05910613
(August 1, 1993)(interpreting 29 C.F.R. �1613.215 (a)(1) - the predecessor
of 29 C.F.R. �1614.107(a))