Chauncey M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 1, 2016

0520160344 (E.E.O.C. Sep. 1, 2016)

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

Chauncey M.,1
Complainant,

v.

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

Request No. 0520160344
Appeal No. 0120150968
Agency No. 4J600006114

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120150968 (April 6, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision 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 the underlying decision, Complainant alleged that the Agency breached the terms of an
April 16, 2014 settlement agreement (SA) which provided in pertinent part that:

(1) [The named management official] agrees to review the time and pay records
of [Complainant] for pay periods 6 through 19, 2012, and issue PS Form 2240
(Other Hours Adjustment Request) to adjust pay and compensate [Complainant]
for all unpaid Out-Of-Schedule pay he is due.

(2) This agreement constitutes a full and final settlement of all issues arising out
of the subject matter of the [identified] Complaint Number 4J-606-0061-14; 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) 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.

Complainant previously alleged that the Agency failed to pay him at the appropriate pay level,
arguing that he was entitled to Out-of-Schedule premium pay when he was not acting for his
supervisor when his supervisor was out on leave. Our previous decision agreed with the
Agency in concluding that no breach occurred; that "the only days [Complainant] was not
provided out-of-schedule premium were days when [he was] acting in a higher level
assignment, in a non-bargaining position, or on annual leave." The record shows that on those
occasions, Complainant was paid Higher Level Pay.

For the first time, in his request for reconsideration, Complainant asserts that Higher Level
Pay was not appropriate even when he was acting in a higher level assignment while his
supervisor was on leave. Also for the first time in his request, Complainant cites to provisions
in the 2012 United States Postal Service/American Postal Workers Union Contract
Interpretation Manual (JCIM) to support his claim that payment of Higher Level Pay under the
circumstances relevant to his claim of breach, violated the applicable bargaining agreement and
hence renders the SA null and void. This new argument has never been raised and is
substantially different than the argument previously raised. Hence it was not at issue or
considered previously.

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.2 The decision in EEOC Appeal No. 0120150968 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 A request for reconsideration is not a second appeal to the Commission. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 9-17 (rev. Nov.
9, 1999).
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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

September 1, 2016
Date