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

Equal Employment Opportunity Commission

Oct 25, 2018

0520180240 (E.E.O.C. Oct. 25, 2018)

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

Andres M.,1
Complainant,

v.

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

Request No. 0520180240

Appeal No. 0120180378

Agency No. 1C191002517

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180378 (Jan. 18, 2018). 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).

In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful
discrimination on the bases of his race and color when, on June 6, 2017, he was issued a Letter of
Warning which was later reduced to an “official discussion” through a grievance proceeding.

In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1),
for failure to state a claim. On appeal, the Commission affirmed the Agency’s dismissal, finding
that, because the Letter of Warning had been reduced to an official discussion, Complainant was
not aggrieved by the Agency’s action.

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 Commission concluded that since there was no indication of any continuing effect on
Complainant from having received the letter, and as the discussion was not in itself a disciplinary
action, the complaint was rendered moot.2

In his request for reconsideration, Complainant fails to address the central issue upon which the
previous decision turned, i.e., whether he was aggrieved by the “official discussion” to which the
discipline was reduced by the grievance proceeding. 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. Complainant has not done so here.

We find that Complainant’s arguments do not 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. Accordingly, we find that Complainant failed to
demonstrate that the Commission should reconsider its appellate decision.

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. 0120180378 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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.

2 It should be noted that, although Complainant claimed to have suffered damages as a result of
the incident at issue, the Commission has held that allegations that fail to state a claim do not
become a viable claim merely because the complainant requests compensatory damages as a
remedy. Ulanoff v. U.S. Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v.
Dep’t of Agric., EEOC Appeal No. 01961499 (Nov. 3, 1997).

0520180240

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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

October 25, 2018
Date