Willie H. Hicks, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
05970638 (E.E.O.C. Jan. 15, 1999)

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