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

Equal Employment Opportunity Commission

Jun 7, 2018

0520180260 (E.E.O.C. Jun. 7, 2018)

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

Celinda L.,1
Complainant,

v.

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

Request No. 0520180260

Appeal No. 0120180263

Agency No. 1C-452-0008-17

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180263 (January 10, 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).

On January 5, 2017, Complainant and the Agency entered into a settlement agreement to resolve
an EEO matter. The settlement agreement provided, in pertinent part, that:

(1) It is the agreement of the parties that [Complainant] will be offered the next Tour 1 or
Tour 2 residual custodial position in maintenance. The offer will be made in writing
and she will have seven (7) days to respond to the offer. The response shall also be in
writing. Regardless of the future start date, her seniority date will revert back to

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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November 12, 2016, for custodial maintenance. The offer shall be made within the
[six] months from the date of this agreement.

The settlement agreement also provided, in pertinent part, that, “If the terms of this agreement
are determined to violate a provision of the applicable collective bargaining agreement, this
agreement will be null and void. In the event that this agreement becomes null and void, the
complainant will be allowed to either renegotiate the terms of this agreement to be in compliance
with the collective bargaining agreement or to reinstate his/her complaint.”

By letter dated July 25, 2017, the Agency informed Complainant that it believed the EEO
settlement agreement violated the collective bargaining agreement (CBA). Specifically, the
Agency noted that Complainant entered into her current custodial laborer position on February
18, 2017, and stated that the seniority adjustment to November 12, 2016, violated the CBA. The
Agency provided Complainant two options: (1) remain in the laborer custodial position and
modify the language of the EEO settlement agreement to reflect her seniority date as February
18, 2017; or (2) reinstate her underlying EEO complaint prior to the signing of the EEO
settlement agreement and reassign Complainant back to her former mailhandler position. The
Agency stated if Complainant failed to respond, it would implement the first option by adjusting
Complainant’s seniority date to February 18, 2017.

On August 28, 2017, the Agency issued a determination to Complainant that the EEO settlement
agreement violated the CBA. The Agency stated it was modifying the settlement agreement to
reflect that her maintenance seniority date would be February 18, 2017, and that Complainant
would remain in her current maintenance position. The Agency provided Complainant with
appeal rights to the Commission’s Office of Federal Operations (OFO). Complainant appealed
to the Commission. In our previous decision, we reversed the Agency’s final decision. In our
previous decision we found that the Agency should have raised its concerns about the CBA prior
to the execution of the settlement agreement.

In its request for reconsideration, the Agency reiterates that the settlement agreement violates the
CBA. The Agency states at the time it entered into the agreement, the Manager did so in good
faith without knowing that the change in seniority violated the agreement.

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) (Aug. 5, 2015), at 9-18; see, e.g., Complainant 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.

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.
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The decision in EEOC Appeal No. 0120180263 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 herein.

ORDER

Within 30 calendar days from the date this decision is issued, the Agency shall implement the
terms of the January 5, 2017 settlement agreement, including adjusting Complainant’s seniority
date to November 12, 2016 for custodial maintenance. The Agency shall provide documentation
to the Compliance Officer, as reference herein, that it has specifically implemented the terms of
the settlement agreement.

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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.
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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

June 7, 2018
Date