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

Equal Employment Opportunity Commission

Jun 3, 2016

0520160100 (E.E.O.C. Jun. 3, 2016)

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

Don F.,1
Complainant,

v.

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

Request No. 0520160100

Appeal No. 0120151933

Agency No. 4B070000915

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120151933 (Oct. 29, 2015). 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).

On January 27, 2015, Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination on the bases of race (Asian), national origin (Indian), sex (male), age,
and in reprisal for prior protected EEO activity when:

1. On an unspecified date in 2013, he was treated differently than other Mail Flow
Controllers who were also affected by the reduction in force (RIF) by being told he
had to compete for promotion to the Associate Supervisor Distribution Operations
(SDO) position;
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.

0520160100

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2. On January 2, 2013, RIF rules were applied whereby he lost seniority, but there
was not a RIF, and Mail Flow Controller positions were transferred from one union
to another union;
3. On an unspecified date in 2013, he was told not to take the 642 examination, yet
other Mail Flow Controllers were told they had to pass the examination before they
applied, and the 642 examination was modified and made simpler for other Mail
Flow Controllers who took the examination; and
4. On an unspecified date, after filing an EEO complaint, he was not allowed to work
as Acting Supervisor (204B).

On February 23, 2015, the Agency dismissed the complaint pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely EEO counselor contact. In so finding the Agency noted that the
record indicated that the issues in the instant complaint dated from January 2013 to March
2013. As Complainant’s EEO counselor contact was deemed October 9, 2013, the Agency
determined that the alleged incidents occurred approximately 222 days beyond the limitation
period.2 As a result, the Agency dismissed the complaint. Complainant appealed and, in Don
F. v. U.S. Postal Serv., EEOC Appeal No. 0120151933 (Oct. 29, 2015), the Commission
affirmed the Agency’s dismissal.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and reiterates numerous arguments previously raised on appeal. For example,
Complainant provided dates for job postings occurring in September 2013, and explained that
he did not provide more specific dates in his EEO complaint because of space constraints. The
Commission remains unpersuaded by Complainant’s attempts to make his complaint timely.
The Commission notes once again that when Complainant filed his EEO complaint, he
specifically listed dates in March 2013, but made no mention of events occurring in September
2013. Likewise, the Commission finds that Complainant failed to present adequate
justification for extending the limitation period beyond 45 days. 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., 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.

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. 0120151933 remains
2 Complainant raised several of the claims alleged in this complaint for the first time in his
appeal to the Commission from a separate complaint. The Commission advised Complainant
to initiate contact with an EEO counselor, and that the date he filed that appeal would be
deemed the date of initial EEO counselor contact.

0520160100

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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.

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 3, 2016
Date