DEBORAH TERHUNE, APPELLANT,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICES, AGENCY.

Request No. 
05950907
Appeal No. 01951811
Agency No. 4H-335-1020-95

July 18, 1997

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On August 21, 1995, the United States Postal Service (hereinafter referred to as the agency) timely initiated a request to the Equal Employment Opportunity Commission (the Commission) to reconsider the decision in Deborah Terhune v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC Appeal No. 01951811 (July 26, 1995), received on July 31, 1995. 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 a 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 that follow, the agency's request is denied; however, the Commission has decided to reconsider the previous decision on its own motion.

ISSUE PRESENTED

The issue presented is whether the previous decision properly reversed the agency's dismissal of a portion of appellant's complaint on the grounds that he failed to state a claim under 29 C.F.R. §1614.103 et seq.

BACKGROUND

The pertinent facts were set forth in detail by the previous decision and are incorporated by reference herein. However, we note the following salient facts: appellant filed a formal EEO complaint wherein she alleged, among other things, that she had been discriminated against on the bases of reprisal (previous EEO activity), sex (female) and physical disability (back injury) when management forwarded paperwork concerning her disability claim directly to her private insurance company instead of giving it to her to send to the insurance company as she had requested. Appellant said that she had no copy of her claim and did not know that it had been filed with her insurance company. Appellant also maintained that her manager purposely sought to delay her compensation since he sent the claim to her insurance company on September 30, 1994, even though she had originally requested the information during the first week of June 1994. As relief, she requested, in part, that she receive $300,000.00 for pain and suffering, as well as for medical or counseling expenses.

In its final decision, the agency dismissed appellant's complaint on the grounds of failure to state a claim. The agency found that appellant did not suffer a personal harm as a result of any agency action. Appellant appealed the final decision to the Commission.

The previous decision determined that the agency's dismissal of the above allegation was improper. The decision noted that appellant, in her complaint, had claimed that her manager delayed the processing of her claim in order to slow the receipt of her compensation award. Consequently, the agency's final decision, in pertinent part, was reversed and the allegation was remanded for processing. [FN1]

In its request for reconsideration (RTR), the agency offers what it considers to be "new and material evidence" with regard to the subject allegation. This evidence, according to the agency, consists of documentation that appellant filed "identical" complaints regarding this matter in the past. These complaints are Complaint Nos. 4H-335-1214-94 and 4H-335-1215-94.[FN2] The agency contends that appellant's current allegation pertains to the same requested information that she was not provided from the previous complaints. [FN3]

Appellant, in her response, asks the Commission to deny the agency's RTR. She maintains that the agency has failed to meet the criteria for reconsideration. In addition, she denies the agency's contention that her present allegation is identical to those raised in her previous complaints.

ANALYSIS AND FINDINGS

In order to merit the reconsideration of the Commission's prior decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). An RTR is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. United States Postal Service, EEOC Request No. 05900769 (September 27, 1990).

After a careful review of the record, the Commission finds that the agency's RTR does not meet the regulatory criteria of 29 C.F.R. §1614.407(c)(1). The evidence and arguments offered by the agency with regard to the subject allegation are not material to any matter that was at issue in the previous decision. Furthermore, this information is not new and was readily available at the time the previous decision was issued. Accordingly, it is the decision of the Commission to deny the request. Notwithstanding the above, however, the Commission has decided that in the interest of judicial economy, it will reconsider the previous decision on its own motion.

EEOC Regulation 29 C.F.R. §1614.107(a) provides that an allegation or a complaint should be dismissed if it states the same claim that is pending or has already been decided by the agency or Commission. The Commission has interpreted this regulation to require that the complaint must set forth the "identical matters" raised in a previous complaint filed by the same complainant, in order for the subsequent complaint to be rejected. Russell v. Department of the Army, EEOC Request No. 05910613 (August 1, 1991) (interpreting 29 C.F.R. §1613.215(a)(1) - the predecessor of 29 C.F.R. § 1614.107(a)).

Appellant, in her response, maintains that the present allegation concerns matters that are separate from those set forth in her prior complaints. Specifically, she said that her present allegation "involves a new request for paperwork that had been incorrectly submitted."Appellant, in her present complaint, claimed that her manager sought to delay her compensation when he sent her claim to her insurance company on September 30, 1994. Appellant had originally requested the information during the first week of June 1994.

After a careful review of the documentation submitted by the agency, we find that the contentions raised in appellant's prior complaints, which are set forth in footnote 2, are identical to the allegation at issue here. We first note that the prior incidents occurred in July and August of 1994, after appellant's initial request for the information. The crux of her prior complaints and the present allegation is that the agency improperly processed her compensation claim. This includes the agency not providing her paperwork, not providing her information, giving her false information, and intentionally delaying her receipt of compensation. Consequently, we find that the dismissal of this allegation was correct. Any investigation of appellant's prior complaints would, by necessity, include her present allegation. We note, however, that the proper grounds for dismissal is that the present allegation states the same claim that is pending or has already been decided by the agency or Commission.

CONCLUSION

After a review of the agency's request for reconsideration, the previous decision, and the entire record, the Commission finds that the agency's request fails to satisfy the criteria of 29 C.F.R. §1614.407(C)(1). However, the Commission has decided to reconsider the decision in EEOC Appeal No. 01951811 (July 26, 1995) on its own motion; that decision with regard to appellant's allegation that management forwarded paperwork directly to her insurance company instead of giving it to her to send to her insurance company as she had requested is hereby REVERSED. The agency's final decision dismissing this allegation is hereby AFFIRMED. There is no further right of administrative appeal from a decision of the Commission on a request for reconsideration.

STATEMENT OF 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:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. Appellant's complaint also alleged that the Station Manager kept a doll in his office that supposedly represented her. She claimed that the Station Manager "did things" to the doll. According to appellant, the doll was described to her as being a blonde, "Barbie doll." Appellant felt that the doll was meant to be a "voodoo doll," because it supposedly had pins inserted. The previous decision found that appellant failed to show a harm that was suffered to a term, condition, or privilege of her employment with regard to this allegation.

FN2. The agency submitted acceptance letters for the above complaints dated October 14, 1994 and October 17, 1994, respectively. These letters indicate that the accepted issues were:
1) Appellant was not provided paperwork to complete her workmen's compensation claim;
2) Appellant discovered that a Form CA-8, turned in by her, had been submitted by the supervisor two weeks later;
3) Appellant was not provided requested information concerning her private disability insurance;
4) Appellant was not provided copies of Forms CA-8, CA-17, and PS Form 3971;
5) Appellant's Form CA-8 was improperly completed by the supervisor, delaying the payment of her claim; and
6) False information was submitted concerning insurance coverage.
The dates of the above allegations were July 7, 20, 22, 25, 26, and August 11, 1994.

FN3. The agency noted appellant's statement in her complaint that: "please see my letter to . . . dated 9/9/94. As you can see I am still trying to get the information from complaints 1214 & 1215."