Stephen E. Gasper, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 10, 2000
05990261 (E.E.O.C. Jul. 10, 2000)

05990261

07-10-2000

Stephen E. Gasper, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Stephen E. Gasper v. United States Postal Service

05990261

July 10, 2000

Stephen E. Gasper, )

Complainant, )

) Request Nos. 05990261

v. ) Appeal Nos. 01974728

) Agency Nos. 1-H-372-1011-96

William J. Henderson, ) Hearing No. 250-96-8279X

Postmaster General, )

United States Postal Service, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On December 12, 1998, the agency timely initiated a request to the

Equal Employment Opportunity Commission (the Commission) to reconsider

the decisions in Gasper v. USPS, EEOC Appeal No. 01974728 (November

24, 1998).<1> EEOC regulations provide that the Commissioners may,

in their discretion, reconsider any previous decision where the party

demonstrates that: (1) the previous decision involved 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)). The agency's request is denied.

After a review of the agency's request to reconsider, the previous

decision, and the entire records, the Commission finds that the agency's

request does not meet the criteria of 29 C.F.R. �1614.405(b), and it is

the decision of the Commission to deny the agency's request. The decision

of the Commission in Appeal Nos. 01974728 remains the Commission's final

decision. There is no further right of administrative appeal from a

decision of the Commission on a request for reconsideration.

ORDER

The agency is ORDERED to take the following remedial actions:

1. Within thirty (30) days of the date of receipt of this decision,

the agency shall adjust complainant's seniority date in the Chattanooga,

Tennessee Post Office to reflect a date prior to that of the Black male

and White female employees who were hired or transferred before him.

Complainant is then to be given all benefits arising out of his adjusted

seniority date.

2, 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.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Chattanooga Tennessee facility

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.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (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:

July 10, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated which found

that a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of the person's RACE, COLOR,

RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY

with respect to hiring, firing, promotion, compensation, or other terms,

conditions or privileges of employment. The United States Postal Service,

Chattanooga, Tennessee reaffirms its commitment to comply with these

statutory provisions.

The Chattanooga, Tennessee, Postal Service facility supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The Chattanooga, Tennessee Postal Service facility was found to have

discriminated against the individual affected by the Commission's

finding on the bases of his race and sex when he was denied his request

for a transfer. The Commission has ordered that complainant be given an

adjusted seniority date and all appropriate benefits arising out of his

adjusted seniority dates. The Chattanooga, Tennessee Postal facility

will ensure that officials responsible for personnel decisions and

terms and conditions of employment will abide by the requirements of

all Federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

The Chattanooga, Tennessee Postal Service facility will not in any

manner restrain, interfere, coerce, or retaliate against any individual

who exercises his or her right to oppose practices made unlawful by,

or who participates in proceedings pursuant to, Federal equal employment

opportunity law.

_______________________________

Date Posted: ____________________

Posting Expires: ________________

1 On 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.