Charlie K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

May 9, 2018

0520170503 (E.E.O.C. May. 9, 2018)

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

Charlie K.,1
Complainant,

v.

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

Request No. 0520170503

Appeal No. 0120151087

Agency No. 1B061004214

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120151087 (February 10, 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).

In his underlying complaint, Complainant alleged that the Agency subjected him to discrimination
on the basis of reprisal for prior protected EEO activity when, management did not provide
Complainant with a make-up overtime day by February 27, 2014, per the grievance settlement.

The Agency dismissed the matter by final decision dated June 19, 2014, pursuant to 29 C.F.R.
§1614.107(a)(1) for failure to state a claim. The Agency determined that the complaint alleged
discrimination when the Agency failed to comply with the grievance settlement. The Agency held

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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that such a claim constituted a collateral attack on the grievance process and was not properly
raised in the EEO process.

Complainant appealed that decision to the Commission. In EEOC Appeal No. 0120142711 (Dec.
3, 2014), the Commission found that the Agency defined the claim too narrowly. The Commission
determined Complainant’s claim was more properly defined as a claim of unlawful retaliation
when he was bypassed for overtime on November 29, 2013. The decision found that such a claim
was an actionable claim. However, the decision noted that Complainant could not allege that the
Agency failed to provide him with makeup hours pursuant to a grievance settlement. Therefore,
Complainant’s claim of unlawful retaliation based on the denial of overtime on November 29,
2013, was remanded back to the Agency for further processing “in accordance with 29 C.F.R. §
1614.108;” meaning the Agency was to conduct an impartial investigation into Complainant’s
claim.

Thereafter, the Agency issued a final decision on December 24, 2014, dismissing the complaint
pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact.

Complainant appealed that decision to the Commission. In EEOC Appeal No. 0120151087 (Feb.
10, 2017), the Commission reiterated that Complainant cannot challenge that he was denied
overtime in February 2014 in his EEO complaint as such a claim would constitute a collateral
attack on the grievance process. The Commission noted the only claim before it was
Complainant’s claim of unlawful retaliation when, on November 29, 2013, he was bypassed for
overtime. The decision stated that 29 C.F.R. § 1614.108 requires that the Agency develop an
impartial and appropriate factual record. The decision noted that rather than investigating the
complaint in accordance with the Commission’s previous decision, the Agency dismissed the
complaint again pursuant to 29 C.F.R. § 1614.107(a)(2). The decision stated it was not appropriate
for the Agency, at this stage, to ignore the order of the Commission’s previous decision and dismiss
the complaint. The Commission reiterated its order that the Agency process the remanded claim
“in accordance with 29 C.F.R. § 1614.108.”

Subsequently, the Agency filed the present request for reconsideration. The Agency agrees that
the February 2014 issue involving the Agency’s alleged failure to comply with a grievance
decision was properly dismissed as a collateral attack. However, the Agency claims that the
Commission’s previous decision failed to consider, as addressed in the Agency’s second final
decision, that the November 2013 issue was untimely raised with an EEO Counselor. The Agency
requests the Commission affirm its dismissal of the November 2013 issue.

The Commission’s decision in EEOC Appeal No. 0120151087, did not address the timeliness
issue. Rather, it remanded the complaint to the Agency because it failed to conduct an
investigation as previously ordered in EEOC Appeal No. 0120142711. The Agency has still not
shown that it complied with the Commission’s prior order. We find it inappropriate for the
Agency, at this stage, to ignore the order of the Commission’s previous decision and dismiss the
complaint. The Agency is again instructed that it must investigate the remanded issue. Following
a full investigation, should the evidence gathered during that investigation establish that
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Complainant’s complaint was untimely filed, the Agency may then reargue that the complaint
should be dismissed for untimely EEO Counselor contact. Jarrod W. v. U.S. Postal Serv., EEOC
Appeal No. 0120180774 (Mar. 5, 2018).2

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. 0120151087 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 (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights 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

2 In this decision, we make no determination regarding whether Complainant’s EEO Counselor
contact was timely.
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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.

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

May 9, 2018
Date