Allen M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 8, 2018

0520170575 (E.E.O.C. Mar. 8, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Allen M.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Request No. 0520170575

Appeal No. 0120171147

Agency No. 4G-752-0002-17

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171147 (July 20, 2017). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of
material fact or law; or (2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. § 1614.405(c).

The underlying appeal pertains to a settlement agreement dated November 3, 2016, between the
Agency and Complainant. The settlement agreement provided, in pertinent part:

This document is confidential. However, a copy of this agreement
will be furnished to those parties necessary to implement its terms
including, but not limited to, the office of Labor Relations at the
district and/or area level.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The parties understand that the terms of this agreement are
protected by the Privacy Act as described below and agree to keep
the terms of this agreement confidential except as otherwise
required by law and as necessary to carry out the terms of the
agreement or resolve disputes over compliance of this agreement.

As a routine use, this information may be disclosed to...a labor
organization as required by the National Labor Relations Act.

Our previous decision concluded that the Agency breached the settlement agreement when the
204b acting supervisor (AS) informed the new manager (M1) regarding the existence of the Last
Chance Agreement in front of one of Complainant’s co-workers (C1). Our previous decision
noted that the Agency failed to dispute the fact that C1 was present when AS made the statement
to M1.

The Agency raises numerous assertions herein, most notably that C1 was not present during
AS’s statement to M1. However, the Agency fails to show that it previously disputed C1’s
presence during AS’s statement to M1. We also note that Complainant produces an affidavit
from C1 confirming her presence during AS’s statement to M1 and hearing such statement.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate
that the appellate decision involved a clearly erroneous interpretation of material fact or law, or
will have a substantial impact on the policies, practices, or operations of the Agency. The
Agency has not done so here.

Accordingly, after reviewing the previous decision and the entire record, the Commission finds
that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120171147 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER
The Agency is ORDERED to notify Complainant of the option to return to the status quo prior to
the signing of the agreement and having his complaint reinstated, or having the terms of the
agreement specifically enforced. The Agency shall notify Complainant within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall also notify Complainant
that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within
which to notify the Agency of his choice. Complainant shall be notified that in order to return to
the status quo ante, he must return any benefits received pursuant to the settlement agreement.
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If Complainant elects to return to the status quo ante and returns any benefits owing to the
Agency, as specified above, the Agency shall resume processing the complaint from the point
processing ceased. If Complainant elects not to return to the status quo ante, i.e., not to return
any consideration owing the Agency, the Agency shall notify Complainant that the terms of the
settlement agreement will be specifically enforced.

A copy of the Agency's notice to Complainant regarding his options, as well as a copy of either
the correspondence reinstating the complaint for processing or the correspondence notifying
Complainant that the terms of the settlement agreement will be specifically enforced, must be
sent to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. If the Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The
Complainant also has the right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement. See 29 C.F.R.
§§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the
right to file a civil action on the underlying complaint in accordance with the paragraph below
entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42
U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the
administrative processing of the complaint, including any petition for enforcement, will be
terminated. See 29 C.F.R. § 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

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 within ninety (90) calendar days from the date that you receive
this decision. 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.

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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 8, 2018
Date