0520120344
09-22-2015
Complainant v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520120344
Appeal No. 0120103626
Agency No. 4E-553-0024-10
DECISION ON REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120103626 (December 16, 2011). 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).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request.
BACKGROUND
Complainant worked as a City Carrier at the Agency's Post Office in Northfield, Minnesota. He filed a formal complaint, alleging discrimination on the basis of disability when:
1. on March 1, 2010, he was accused of threatening his supervisor, and he was sent home without pay resulting in 5.96 of lost wages; and
2. in early April 2010, his supervisor wore various "mood" rings.
The Agency dismissed claims 1 and 2 for stating the same claims that were raised in a prior EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency noted that claims 1 and 2 were identical to the matters raised in Agency No. 4E-553-0019-10. The Agency also dismissed claim 2 on alternative grounds, finding that Complainant failed to show that he suffered a personal loss or harm to a term, condition or privilege of employment.
In our previous decision, we affirmed the Agency's dismissal of claim 2 for failure to state a claim, but reversed the Agency's dismissal of claim 1. Specifically, we noted that the record did not contain the previous formal complaint, Agency No. 4E-553-0019-10, referenced by the Agency. We noted that we were unable to conclude that the matters raised in claim 1 were identical to the issues raised in the previous complaint. We noted that it is the Agency's burden to have evidenced or proof of its final decision.
In its request for reconsideration, the Agency contends that our previous decision involved a clearly erroneous interpretation of material fact or law with respect to claim 1. The Agency contends that Complainant alleged in his previous informal complaint (Agency No. 4E-553-0019-10) that on March 1, 2010, his supervisor showed violent behavior and sent him home early without pay, losing 5.96 hours of work. The Agency contends that on March 30, 2010, Complainant withdrew his informal complaint, fully understanding that by withdrawing, he was waiving his rights to any further appeal through the EEO process. The Agency contends that Complainant subsequently filed the instant Agency No. 4E-553-0024-10 on August 3, 2010, alleging the same matter that he previously withdrew in Agency No. 4E-553-0019-10.
Complainant did not file a response to the Agency's request.
ANALYSIS
After reconsidering the previous decision, the entire record, and Commission precedent, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to grant the request. We find that the previous appellate decision involved a clearly erroneous interpretation of material fact or law.
Upon review, we note that the record contains a copy of the EEO Counselor's report for Complainant's previous complaint, Agency No. 4E-553-0019-10. Therein, the report noted that Complainant claimed that "on March 1, 2010, he was falsely accused of threatening [his supervisor] and was sent home without pay resulting in 5.96 of lost wages." The record also contains Complainant's signed withdrawal of the previous complaint dated March 30, 2010.
In past cases, the Commission has found that where a complainant knowingly and voluntarily withdraws her complaint, the Commission considers the matter to have been abandoned. See Lopez v. Dep't of Commerce, EEOC Appeal No. 0120092893 (Sep. 28, 2011) (citing Tellez v. Dep't of Transp., EEOC Request No. 05930805 (Feb. 25, 1994)). Further, Complainant may not request reinstatement of an informal complaint. See id. (citing Allen v. Dep't of Defense, EEOC Request No. 05940168 (May 25, 1995)). Once a complainant has withdrawn an informal complaint, absent a showing of coercion, a complainant may not reactivate the EEO process by filing a complaint on the same issue. Id. The record clearly reflects that Complainant previously withdrew claim 1 during the informal stage of processing in Agency No. 4E-553-0019-10. Therefore, we find that the Agency properly dismissed claim 1 for stating the same claim that was raised in a prior EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the agency's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Appeal No. 0120103626 is VACATED, and the Agency's final decision is affirmed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 22, 2015
Date
2
0520120344
2
0520120344