05971005
06-17-1999
Valerie Lewis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Valerie Lewis v. United States Postal Service
05971005
June 17, 1999
Valerie Lewis, )
Appellant, )
)
v. ) Request No. 05971005
) Appeal No. 01965413
William J. Henderson, ) Agency No. HI-0130-96
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENYING REQUEST FOR RECONSIDERATION
On August 9, 1997, Valerie Lewis (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Valerie Lewis v. Marvin T. Runyon, Jr., Postmaster
General, United States Postal Service, EEOC Appeal No. 01965413 (July
16, 1997). 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). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of appellant's complaint.
BACKGROUND
During the period in question, appellant was employed as a Clerk at the
agency's facility in Boynton Beach, Florida. Appellant contacted an EEO
Counselor on December 28, 1995, and thereafter filed a formal complaint
alleging discrimination based on race, color, religion, and reprisal
when, on March 17, 1995, her "secondary job of giving second notices and
returning certified mail [was] changed immediately to a job that no one
wanted." The agency thereafter issued a final decision (FAD) dismissing
the complaint for being both untimely and moot. Appellant appealed and
the prior decision affirmed the FAD.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of a personnel action. This period may be extended when
the appellant shows that she was not notified of the time limits and
was not otherwise aware of them; that she did not know and reasonably
should not have known that the discriminatory matter or personnel action
occurred; that despite due diligence she was prevented by circumstances
beyond her control from contacting an EEO Counselor within the time
limits; or for other reasons considered sufficient by the agency or
the Commission. 29 C.F.R. �1614.105(a)(2).
In this case, we find sufficient evidence in the record to conclude
that, although the date on which the challenged incident occurred was
March 17, 1995, appellant did not initiate EEO counseling until December
28, 1995. Although appellant now argues that she initially contacted
the EEO Counselor on March 17, 1995, this is the first time she has
made such an assertion. Furthermore, although appellant has submitted
documentation which she says supports that assertion, there is nothing in
this documentation which either states or indicates that she initiated
counseling as early as March 1995. Accordingly, because appellant's
initiation of EEO counseling was well beyond the 45-day period, and
because she has offered no justification for extending the period,
we find that her complaint was properly dismissed as untimely.
Furthermore, pursuant to 29 C.F.R. �1614.107(e), an agency shall dismiss a
complaint, or portions thereof, when the issues raised therein are moot.
An allegation is moot when (1) there is no reasonable expectation
that the alleged violation will recur; and (2) interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violation. Henderson v. Department of the Treasury, EEOC Request
No. 05940820 (August 31, 1995) (citing County of Los Angeles v. Davis,
440 U.S. 625 (1979)).
In this case, we find there is no reasonable expectation that the alleged
violation will recur insofar as appellant was removed in September 1995
and this removal was subsequently upheld by the Merit Systems Protection
Board (MSPB). See Magno v. U.S. Postal Service, EEOC Request No. 05920662
(January 22, 1993).<0> Furthermore, insofar as appellant is no longer
employed at the agency, and because there is no monetary relief appellant
would be entitled to in the event she proved discrimination, we find that
interim events have eradicated the effects of the alleged violation.<0>
Accordingly, we find that appellant's complaint was properly dismissed
as moot.
CONCLUSION
After a review of appellant's request for reconsideration, 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).
Therefore, it is the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01965413 (July 16, 1997)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this 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:
June 17, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 We also note that the Commission concurred with the MSPB's decision.
Lewis v. U.S. Postal Service, EEOC Petition No. 03980110 (September 18,
1998).
02 Appellant did not request compensatory damages.