Brandon D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Feb 7, 2018

0520180026 (E.E.O.C. Feb. 7, 2018)

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

Brandon D.,1
Complainant,

v.

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

Request No. 0520180026

Appeal No. 0120161907

Hearing No. 430-2014-00308X

Agency No. 1K-281-0051-13

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Brandon D. v. U.S. Postal Serv., EEOC Appeal No.
0120161907 (Aug. 30, 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).

On January 3, 2014, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), color (black), sex (male), and
in reprisal for prior protected EEO activity when:

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.
0520180026

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1. On September 3, 4, 5, 6, 14, and 17, 2013, he was not provided overtime
opportunities; and

2. Since March 7, 2013 and ongoing, his night differential hours were short by thirty
minutes every night.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ). The AJ assigned to the matter granted the Agency’s motion and issued a summary
judgment decision. Therein, the AJ determined that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. More specifically, as to claim (1), Complainant’s
supervisor stated that management has historically had problems reaching Complainant by phone
to offer him overtime before the start of his shift and that Complainant usually only worked
overtime on his non-scheduled days. Nonetheless, the record showed that Complainant received
the same amount of overtime as his identified comparators over the course of the days at issue.
With respect to claim (2), Complainant’s supervisor stated that he decided to change
Complainant’s and several other employees’ schedules due to insufficient work at the beginning
of their tours. This resulted in those employees losing 30 minutes of night shift differential pay.
The AJ concluded that Complainant failed to show that these reasons were pretextual. As a
result, the AJ found that Complainant had not been subjected to discrimination or reprisal as
alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision.
Complainant appealed and in Brandon D. v. U.S. Postal Serv., EEOC Appeal No. 0120161907
(Aug. 30, 2017), the Commission affirmed the final order.

In his request for reconsideration, Complainant expresses his disagreement with the appellate
decision and reiterates previous arguments considered on appeal. 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. Complainant has not presented any evidence demonstrating that the Commission erred in
finding that the AJ properly granted summary judgment in this matter. Moreover, the
Commission finds that Complainant has not presented any evidence to support reconsideration of
the Commission’s finding that he failed to show that he was subjected to discrimination.

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. 0120161907 remains the
Commission’s decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

0520180026

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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.

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

February 7, 2018
Date