05970926
03-04-1999
Robert A. Rose, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert A. Rose v. United States Postal Service
05970926
March 4, 1999
Robert A. Rose, )
Appellant, )
)
v. ) Request No. 05970926
) Appeal No. 01965805
William J. Henderson, ) Agency No. 4-B-140-1040-96
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On July 15, 1997, Robert A. Rose (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Robert A. Rose v. Marvin T. Runyon, Jr., Postmaster
General, United States Postal Service, EEOC Appeal No. 01965805 (June
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 final decision dismissing appellant's complaint as untimely.
BACKGROUND
Appellant initiated EEO counseling on January 3, 1996, alleging
discrimination based on sex, age, and physical disability when: (1) on
September 5, 1995, he lost a full day's wages due to a female training
with him; (2) on October 10, 1995, his request for annual leave to attend
his son's wedding and rehearsal was denied; (3) during his probationary
period as a Mark-Up Clerk in the Centralized Forwarding Unit, he was
required to provide documentation for monthly military leave, he worked
excessive hours, and he was not trained in all aspects of the position;
(4) he was improperly reassigned/downgraded to a Labor Custodian position
at the Niagara Falls facility on November 11, 1995; and (5) he was issued
a letter of removal on January 2, 1996.
Although the impetus for appellant's initiation of EEO counseling was
Issue 5, the Counselor's report states that, during the counseling
process, appellant told the Counselor that he did not wish to pursue
that issue. In this regard, an affidavit from the EEO Counselor states
appellant told her that he did not wish to pursue Issue 5 because he
had gotten his job back through the grievance process. In his formal
complaint, appellant raised Issues 1 through 4 but did not explicitly
raise Issue 5.<0> Thereafter, the agency issued a final decision
dismissing appellant's complaint as untimely. Specifically, the agency
noted that Issues 1 through 4 had all occurred more than 45 days prior
to appellant's initiation of EEO counseling. Appellant appealed and
the prior decision affirmed the FAD without comment.
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).
Appellant has offered nothing, at this point, that would justify
reconsidering the prior decision. In this regard, we find the decision
correctly concluded that appellant's complaint was untimely. In so
finding, we note it is undisputed that Issues 1 through 4 all occurred
more than 45 days prior to appellant's initiation of EEO counseling. See
29 C.F.R. ��1614.105(a)(1), 1614.107(b). Although the fact that Issue
5 was timely raised could have resulted in the time limit being waived
with regard to Issues 1 through 4 under a continuing violation theory,
it is clear from the record that appellant withdrew Issue 5 at the
counseling stage. Because a prerequisite to establishing a continuing
violation is that at least one of the alleged discriminatory acts fell
within the 45-day period, the withdrawal of Issue 5 means that none of
the challenged acts occurred within that period. See McGivern v. United
States Postal Service, EEOC Request No. 05901150 (December 28, 1990).
For that reason, we find that the agency was not required to consider
whether appellant had established a continuing violation prior to
dismissing his complaint.
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. 01965805 (June 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:
March 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 The only thing in the complaint which can be construed as a
reference to Issue 5 is appellant's identification of the alleged date
of discrimination as January 2, 1996.