BERNARD J. SCHER, APPELLANT,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Request No. 
05940702
Appeal No. 01942286
Agency No. 3-N-1101-92

May 30, 1995

DENIAL OF REQUEST TO RECONSIDER

INTRODUCTION On June 8, 1994, Bernard J. Scher (hereinafter referred to as appellant), by and through his representative, initiated a timely request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Bernard J. Scher v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC Appeal No. 01942286 (May 10, 1994). EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous decision. 29 C.F.R. §1614.407(a). The Commission may also reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. §1614.407(c). Appellant bases his request for reconsideration on 29 C.F.R. §1614.407(c)(2) and (3). For the reasons set forth herein, appellant's request is denied.

ISSUE PRESENTED The issue presented herein is whether the previous decision properly affirmed the agency's decision to dismiss an allegation raised in appellant's complaint on the grounds that the additional allegation raised therein had not been brought to the attention of the EEO Counselor, and was not like or related to the other issues in appellant's complaint on which he had received counseling.

BACKGROUND The pertinent facts were set forth in the previous decision and are incorporated by reference herein. The record indicates that appellant initiated contact with an EEO Counselor on October 28, 1991. At that time, appellant indicated that the matter at issue involved a minority clerk not being required to adhere to his specific work schedule. According to appellant, management allowed the minority clerk to do whatever he pleased, while he was required to adhere to a specific work schedule. Thereafter, the agency forwarded appellant correspondence on several occasions in an effort to arrange a counseling session. The record reflects that, despite the fact that appellant received the agency's letters of correspondence, appellant did not contact the EEO Office. Rather, the record reflects that over a year later, on April 15, 1993, appellant's attorney contacted the EEO Office and requested the case file pertaining to this matter. On June 28, 1993, the appellant's attorney forwarded a letter to the EEO Office requesting that a meeting be held in an attempt to settle this matter. On July 28, 1993, the agency subsequently mailed appellant documentation relating to his Notice of Final Interview. On August 4, 1993, appellant filed a formal complaint alleging discrimination based on race (Caucasian) and reprisal (prior EEO activity) when on a daily basis beginning on October 28, 1991, he was required to adhere to a specific work schedule while another employee was allowed to do as he pleased. Appellant further alleged that this particular employee harassed, threatened, intimidated and sexually abused other employees, as well as himself, which ultimately forced him to resign from the agency and prohibited him from working to "a normal retirement age." In its final decision, the agency accepted appellant's allegation relating to the requirement to adhere to a specific work schedule. However, the agency rejected the appellant's allegation pertaining to harassment, intimidation, and sexually abusive behavior exhibited by the other employee in the work place on the grounds that appellant did not raise these allegations during the informal counseling process. In its final decision, the agency indicated that it would contact appellant's attorney to initiate counseling on this allegation. In Bernard J. Scher v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC Appeal No. 01942286 (May 10, 1994), the previous decision found that the agency properly dismissed appellant's allegations pertaining to harassment, intimidation, and sexually abusive behavior exhibited by another employee in the work place on the grounds that appellant did not raise these allegations during the informal counseling process. The previous decision noted that appellant failed to raise the issues of harassment and/or constructive discharge prior to filing his formal complaint. The previous decision further noted that, while appellant's attorney stated in a letter dated June 28, 1993 that appellant was a victim of discriminatory practices allowed or condoned by the agency, no references were made to the harassment, intimidation, threats, and sexual abuse raised for the first time in the appellant's formal complaint. Thus, the previous decision found that, since appellant did not raise these issues prior to filing his formal complaint and such issues were not like or related to the matter that had been brought to the attention of an EEO Counselor, the agency properly determined that the appropriate disposition of this allegation was to refer appellant for counseling. In his request, appellant contends that the previous decision should be reconsidered pursuant to 29 C.F.R. §1614.407(c)(2). Specifically, appellant's representative contends that the previous decision was in error and involved a misapplication of established agency policy which denied appellant the opportunity to include allegations not raised with the original complaint. Appellant's representative further contends that appellant should not be unduly penalized for excusable neglect for not raising all the allegations with an EEO Counselor because appellant is not an attorney, nor versed in the art of construction of a complaint.

ANALYSIS AND FINDINGS As discussed above, the Commission may, in its discretion, reconsider any previous decision when the party seeking reconsideration submits written argument or evidence which tends to establish that any of the criteria in 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request to reconsider is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05880749 (September 28, 1989). In order for a case to be reconsidered under 29 C.F.R. §1614.407(c), the request must contain specific information which meets the requirements of this regulation. A request to reconsider is not merely a form of second appeal. Regensberg v. United States Postal Service, EEOC Request No. 05900850 (September 7, 1990). Instead, the request to reconsider is an opportunity for a party to submit newly discovered and material evidence, not readily available when the previous decision was issued; to establish substantive error in a previous decision; or to demonstrate the manner in which the previous decision is of such exceptional nature as to have substantial precedential implications. Lyke v. United States Postal Service, EEOC Request No. 05900769 (September 27, 1990). EEOC Regulation 29 C.F.R. §1614.107(b), states in pertinent part, that an agency shall dismiss a complaint or portion thereof which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. The EEOC Regulations further direct an EEO Counselor to inform a complainant that only matters raised during pre-complaint counseling, or matters which are like or related thereto, may be raised in a subsequent complaint filed with the agency. 29 C.F.R. §1614.105(b). In determining if a later allegation or complaint is "like or related" to the original complaint, the question arises as to whether the later allegation or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Calhoun v. United States Postal Service, EEOC Request No. 05891068 (March 8, 1990); Webber v. Department of Health and Human Services, EEOC Appeal No. 01900902 (February 28, 1990). Applying the foregoing standard to the facts presented in this case, we find that the additional allegations raised in appellant's complaint, which were not raised during the counseling session, are not like or related to the work schedule requirement allegation. Specifically, we find that the imposition of a work schedule requirement is factually distinct from the harassment, threats, intimidation, sexual abuse, and constructive discharge allegations raised by appellant. The evidence of record does not demonstrate that appellant's resignation was attributable to the imposition of the requirement that he adhere to a specific work schedule. Further, we find that the additional allegations do not add to or clarify the adherence to a specific work schedule allegation. Therefore, we find that the previous decision properly affirmed the agency's decision to dismiss appellant's additional allegations pursuant to 29 C.F.R. §1614.107(b). In addition, we note that in his request, appellant admits that he did not address the subject allegations during the informal counseling process. Appellant, nonetheless, argues that he should not be unduly penalized for excusable neglect for not including all allegations in his informal complaint because he is not an attorney, nor versed in the art of construction of a complaint. We acknowledge the contentions raised by appellant in his request. However, we do not find that such contentions satisfy the criteria for reconsideration pursuant to 29 C.F.R. §1614407(c). Accordingly, we deny appellant's request for reconsideration.

CONCLUSION After a review of appellant's request to reconsider, 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). The decision in EEOC Appeal No. 01942286 (May 10, 1994) remains the Commission's final decision in this matter. There is no further right of administrative appeal on a decision of the Commission on a Request to Reconsider. This decision, however, does not constitute a decision on the merits of appellant's complaint.

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:

Frances M. Hart
Executive Officer
Executive Secretariat