Steven G. Constable, Appellant,v.Postmaster General, United States Postal Service, (N.E./N.Y. Metro) Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990277 (E.E.O.C. Nov. 4, 1999)

05990277

11-04-1999

Steven G. Constable, Appellant, v. Postmaster General, United States Postal Service, (N.E./N.Y. Metro) Agency.


Steven G. Constable, )

Appellant, )

)

v. ) Request No. 05990277

) Appeal No. 01974765 William J. Henderson,

) Agency No. 4B120006397

Postmaster General, )

United States Postal Service, )

(N.E./N.Y. Metro) )

Agency. )

______________________________)

GRANTING OF REQUEST FOR RECONSIDERATION

On December 22, 1998, appellant initiated a request to the Equal

Employment Opportunity Commission (EEOC) to reconsider the decision in

Steven G. Constable v. William J. Henderson, EEOC Appeal No. 01974765

(December 15, 1998). 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 misapplication of

established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision

is of such exceptional nature as to have substantial precedential

implications, 29 C.F.R. �1614.407(c)(3).

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), and it is the

decision of the Commission to grant appellant's request.

ISSUE PRESENTED

The issue presented is whether the previous decision was correct when

it affirmed the agency's dismissal of appellant's complaint (alleging

a denial of training opportunities/advancement) for stating the same

claim as previously filed.

BACKGROUND

Appellant filed an EEO complaint dated September 11, 1995, alleging that

he was discriminated against on the bases of sex, non-union affiliation

and in reprisal for prior EEO activity when he was denied ongoing training

opportunities, most recently during the period February 1997 through April

7, 1997, as an Acting Supervisor (204-B) at the Lansingburgh Station.

Originally, the agency dismissed this complaint on the grounds that

appellant failed to state a claim. The appellant appealed the dismissal to

the Commission and in a decision dated September 10, 1996, the complaint

was remanded to the agency for appellant to provide specific dates of

the alleged discriminatory behavior. The agency issued a final agency

decision (FAD) on October 29, 1996, dismissing the complaint for stating

the same claim raised in three prior complaints. The appellant appealed,

and the Commission affirmed the FAD.

In appellant's request for reconsideration, appellant contends the issue

in this complaint concerns a different time period then the training

that was denied in prior complaints. The agency requests that we deny

appellant's request because the appellant failed to identify any person

who was newly assigned training at the Lansingburgh Station during the

period of February 1997, through April 7, 1997.

ANALYSIS AND FINDINGS

For the foregoing reasons, the Commission finds that appellant's request

for reconsideration meets the criterion of 29 C.F.R. �1614.407(c)(2). We

note that EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in

pertinent part, 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. The Commission has held

that a complaint must set forth the identical matters as contained in

a previous complaint filed by the same complainant, in order for the

complaint to be dismissed.

After a careful review of the record, we find that the agency erred in

its application of EEOC Regulation 29 C.F.R. �1614.107(a). In the instant

complaint, appellant alleges he was denied training opportunities from

February 1997, through April 1997. Appellant's prior complaints involve

lost training opportunities from June 1985 through the Fall of 1994,

July 1995, and October 1995 through August 1996. Hence, we do not have

identical matters due to the time differences. Consequently, we find

that the previous decision erred.

CONCLUSION

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 meets the criterion of 29

C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission

to GRANT appellant's request. The decision in EEOC Appeal No. 01974765

(December 15, 1998) is REVERSED and REMANDED for investigation. There is

no further right of administrative appeal on a decision of the Commission

on a Request to Reconsider.

ORDER (E1092)

The agency is ORDERED to process complaint 4B120006397 in accordance with

29 C.F.R. �1614.108. The agency shall acknowledge to the appellant that

it has received the complaint 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 the 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 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:

November 4, 1999

________________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations