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

Equal Employment Opportunity Commission

Oct 31, 2018

0520180486 (E.E.O.C. Oct. 31, 2018)

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

Brenton W.,1
Complainant,

v.

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

Request No. 0520180486

Appeal No. 0120181333

Agency No. 1G-322-0004-16

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120181333 (June 7, 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).

During the period at issue, Complainant worked as a Parcel Post Distribution Operator at the
Agency’s facility in Jacksonville, Florida. In his underlying complaint, Complainant alleged that
the Agency discriminated against him on the bases of race (African-American), sex (male),
disability, age (56), and in reprisal for prior protected EEO activity when:

1. On October 13, 2015, he was given a modified job assignment;

2. On December 3, 2015, he was offered a different modified job assignment; and

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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3. On December 24, 2015, he was sent home until a date to be specified.

On January 16, 2018, an EEOC Administrative Judge (AJ) issued a decision by summary judgment
in favor of the Agency. The Agency issued a final order adopting the AJ’s finding that
Complainant failed to prove discrimination as alleged. Complainant appealed the Agency’s final
order. In our previous decision, we affirmed the final order, finding that the AJ correctly
determined that the preponderance of the evidence did not establish that Complainant was
discriminated or retaliated against by the Agency as alleged.

In his Request for Reconsideration, Complainant alleges that the Commission failed to address the
facts and arguments that Complainant raised in his Memorandum of Law in Support of Appeal
and Opposition to the Agency’s Motion for Summary Judgment. Complainant contends that the
Commission erred as a matter of law when it did not issue a ruling on Complainant’s appeal of the
AJ’s denial of Complainant’s Motion to Amend.

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.

The Commission finds that the arguments raised by Complainant in the instant request for
reconsideration were largely raised in his previous appeal, fully considered, and rejected.
Complainant has not shown that the AJ erred in finding that he failed to set forth sufficient facts
showing that there was a genuine issue still in dispute. The Commission finds that the AJ’s
decision appropriately indicated that the record was fully developed; that the AJ considered all of
the record evidence in the light most favorable to Complainant; and that the evidence established
that Complainant failed to show that he was subjected to discrimination or reprisal as alleged. In
sum, Complainant has not presented any evidence establishing 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. 0120181333 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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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

October 31, 2018
Date