05960195
10-01-1998
Warren A. Taylor, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Warren A. Taylor v. United States Postal Service
05960195
October 1, 1998
Warren A. Taylor, )
Appellant, )
) Request No. 05960195
v. ) Appeal No. 01952936
) Agency Nos. 4-H-310-2697-93
William J. Henderson, ) and 4-H-310-1063-94
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On December 22, 1995, Warren A. Taylor (hereinafter referred to as
appellant) initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Warren
A. Taylor v. Marvin T. Runyon, Jr., Postmaster General, United States
Postal Service, EEOC Appeal No. 01952936 (September 13, 1995). Appellant
received the previous decision on September 18, 1995. EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous 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 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, the appellant's request is dismissed.
The issue presented is whether the agency breached the Settlement
Agreement dated May 18, 1994.
As set out more fully in the previous decision, on May 18, 1994, appellant
and the agency entered into a settlement agreement (SA1) resolving the
complaints identified, above. Thereafter, in December 1994, appellant
received a letter of warning (LOW) regarding his attendance, wherein
appellant was cited for three unscheduled absences since April 1994.
On January 13, 1995, appellant alleged a breach of SA1, contending
that SA1 limited disciplinary actions concerning unscheduled absences.
On February 23, 1995, the agency issued a final agency decision (FAD),
finding that it had not breached SA1. In the FAD, the agency found that,
in compliance with SA1, it had reduced a 14-day suspension and expunged
the matter from appellant's records, credited appellant with 100 hours of
back pay at straight time, and promised not to discriminate or retaliate
against him.
Appellant filed an appeal, alleging a breach of Paragraph 2 of SA1,
which provided that "there shall be no discrimination or retaliation"
against appellant. Referencing 29 C.F.R. �1614.504(c), the previous
decision determined that appellant's allegation of breach constituted
a new claim of discrimination that must be processed as a separate
complaint, and appellant was directed to contact an EEO counselor.
Meanwhile, appellant had sought EEO counseling regarding the December
1994 LOW (and a second LOW issued in January 1995). Appellant filed
a formal complaint (Complaint No. 4H-310-1063-95) on March 9, 1995,
alleging discrimination based on reprisal with regard to the two LOWs,
and, by letter dated March 28, 1995, the agency accepted appellant's
complaint for investigation.
After issuance of the previous decision, the decision's Order was under
review by the Compliance and Control Division of the Office of Federal
Operations (Compliance). As directed in the previous decision, the
agency wrote a letter to appellant offering him EEO counseling on the
LOWs but noting that Complaint No. 4H-310-1063-95 raising these issues
was already pending. Thereafter, on December 22, 1995, appellant wrote
the Commission requesting reconsideration. Appellant states that he had
just learned that he had referred to the wrong settlement agreement in the
January 13, 1995, claim of breach. In his request for reconsideration
(RTR), appellant states that he intended to allege breach of an earlier
settlement agreement dated April 20, 1993 (SA2), which resolved Complaint
No. 4H-310-2016-93.
The Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). Having reviewed appellant's RTR, the previous
decision, and the entire record, we find that appellant's request
is untimely and is dismissed. The previous decision is affirmed, as
modified.
EEOC Regulation 29 C.F.R. �1614.407(b) provides a party an opportunity to
request reconsideration of a previous decision within 30 days of receipt
of that decision. Appellant received the previous decision on September
18, 1995, and the RTR was filed on December 22, 1995, beyond the 30-day
period specified in our regulations. In his RTR, appellant did not seek
waiver or equitable tolling of the applicable filing period.<1> We find
therefore that appellant's RTR is untimely and properly dismissed.
The previous decision properly determined that appellant's allegations
constituted new claims that required initiation of EEO counseling.
29 C.F.R. �1614.504(c). Further, to the extent that appellant seeks to
substitute SA2 for SA1, we find that this request is not appropriately
considered in a decision on a RTR. The Commission's scope of review on
a request for reconsideration is narrow. See 29 C.F.R. �1614.407 et seq.
Here, appellant, for the first time in these proceedings, alleges a breach
of SA2. This is a new claim that requires initiation of appropriate EEO
processing, and appellant must first raise his claim of breach of SA2
with the agency as required by our regulations. 29 C.F.R. �1614.504(a).
For this reason, should appellant wish to pursue his claim of breach of
SA2, he is directed to comply with EEOC Regulation 29 C.F.R. �1614.504(a).
To the extent that appellant's allegation of breach of SA2 concerns the
LOWs, however, we note that appellant already has a complaint pending with
the agency concerning the LOWs issued in December 1994 and January 1995,
i.e., Complaint No. 4H-310-1063-95. As the agency has already complied
with the Order in our previous decision, that Order will not be repeated
herein.
For the reasons set forth above, the Commission finds that appellant's
request is properly dismissed. The previous decision is affirmed,
as modified.
CONCLUSION
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the appellant's request was untimely and is dismissed. The decision in
EEOC Appeal No. 01952936 (September 13, 1995) is AFFIRMED, as MODIFIED.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration.
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:
OCT 1, 1998
Date Frances M. Hart
Executive Officer
1In the previous decision, appellant was informed of his right to request
reconsideration of the previous decision and advised that filings beyond
the applicable time period must include a written statement setting
forth the reasons for any delay. Our regulations do not provide for
tolling of the time period pending review by Compliance.