Donita B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 21, 2018

0520180331 (E.E.O.C. Aug. 21, 2018)

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

Donita B.,1
Complainant,

v.

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

Request No. 0520180331

Appeal No. 0120180086

Agency No. 1K-271-0044-17

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180086 (March 8, 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).

Complainant filed an EEO complaint in which she alleged that the Agency discriminated against
her on the bases of disability and age when, on April 26, 2017, she first became aware that she had
been charged absent without official leave (AWOL) in December 2016 and January 2017, and
dating back to 2014, as opposed to leave without pay (LWOP). While Complainant claimed that
she called the automated system to specify her leave code as LWOP, Complainant’s manager
maintained that she did not. The Agency dismissed the complaint for failure to timely contact an
EEO counselor and alternatively, for failure to state a claim.

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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2
In our previous decision, we affirmed the Agency’s dismissal of the complaint on both grounds.
As to the timeliness of her contact with the EEO counselor, the Commission found that reasonable
suspicion of alleged discrimination existed for Complainant long before she contacted an EEO
counselor as she was first marked AWOL nearly two years earlier and was well aware of the EEO
process at the time. Regarding whether she stated a claim, the Commission found that the
complaint constituted a collateral attack upon the proceedings of the Office of Workers’
Compensation Programs.

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), at 9-18 (August 5, 2015); see, e.g., Lopez v. Department of Agriculture, EEOC
Request No. 0520070736 (August 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. She has not presented any argument or evidence tending to
establish the existence of either reconsideration criterion. She merely asserts, in a conclusory
fashion, that she disagrees with the outcome of the previous decision. In essence, she is rearguing
her appeal on the merits, effectively raising the same contentions that we rejected in our previous
decision.

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. 0120180086 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.

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.
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3
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

August 21, 2018
Date