05970638
01-15-1999
Willie H. Hicks, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Willie H. Hicks v. United States Postal Service
05970638
January 15, 1999
Willie H. Hicks, )
Appellant, )
)
v. ) Request No. 05970638
) Appeal No. 01956340
William J. Henderson, ) Agency No. 1I641104194
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On January 13, 1997, appellant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision in
Willie H. Hicks v. Marvin T. Runyon, Jr., Postmaster General, United
States Postal Service, EEOC Appeal No. 01956340 (December 11, 1996),
received by appellant on December 18, 1996. 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 below, the Commission denies appellant's request.
Appellant first contacted an EEO counselor on January 6, 1994, and filed
a complaint on February 9, 1994. In his complaint, he set forth three
allegations of discrimination on the bases of race (black) and reprisal:
(1) that management had denied him promotions over the past ten years;
(2) that management failed to provide him with 346 training; and that
management failed to return him to his old job. On May 23, 1994, the
agency dismissed allegation (1) and accepted the remaining issues.
In Hicks v. United States Postal Service, EEOC Appeal No. 01943833
(December 14, 1994), the Commission found that the agency had not properly
defined allegation (1) and remanded the matter so that it could reach an
agreement with appellant as to what issues were raised in allegation (1).
On July 20, 1995, after protracted negotiations, appellant signed a
stipulation in which he listed nine specific instances between 1987 and
1994 in which the agency failed to promote him. Appellant stated that
allegation (1) in his original complaint pertained to the nine vacancies
listed in his stipulation. The agency issued a final decision in which
it accepted one nonpromotion and rejected the rest. It dismissed five
nonpromotions that occurred between 1987 and 1992 for untimely contact
with an EEO counselor. It dismissed the remaining three incidents
on the ground that they were premature, and advised appellant to seek
counseling on those matters. The previous decision summarily affirmed
the agency's final decision.
Appellant argues in his request for reconsideration that the nonselections
set forth in the July 1995 stipulation constitute a continuing violation.
Whether a series of acts, such as nonpromotions, constitutes a continuing
violation depends on whether the acts were similar in nature, whether they
were recurring or isolated, and whether they had a degree of permanence
that should have triggered a reasonable suspicion of discrimination.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (May
24, 1995). In this case, the five dismissed nonselection incidents
appear to be qualitatively distinct from the accepted nonselection. The
accepted nonselection concerned promotion to human resources specialist.
By contrast, the five rejected nonselections involved nonpromotions to
building services supervisor and mail services supervisor. Appellant has
not presented any argument or evidence tending to show that the position
titles were similar, that the positions required similar qualifications,
or that the same selecting officials were involved in the accepted and
dismissed nonselections. We therefore find that the rejected nonpromotion
incidents are discrete separate occurrences that do not constitute a
continuing violation.
Appellant also argues that allegation (1) should be expanded to include
several nonselections for letter carrier positions. In support of
his request, he presents a self-prepared "chronology" in which he lists
several instances between 1983 and 1990 in which he unsuccessfully sought
a letter carrier position. For the reasons discussed above, none of those
incidents would have been timely, given appellant's initial contact with
an EEO counselor in January 1994.
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record,
the Commission finds appellant's request does not meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission
to deny appellant's request. The decision of the Commission in Appeal
No. 01956340 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.
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:
JAN 15, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat