0520160166
06-21-2016
Doretta F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Doretta F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Request No. 0520160166
Appeal No. 0120141635
Agency No. 1G721000614
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120141635 (December 17, 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).
At the time of the events giving rise to this complaint, Complainant worked as a Clerk at the Agency's facility in Little Rock, Arkansas. Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of her disability when, in November 2008, management abolished her position on Tour 2 and reassigned her to Tour 3.
Our prior appellate decision affirmed the Agency's final decision dismissing the complaint because Complainant failed to timely contact an EEO counselor with the 45 days required by regulation. The decision found that the alleged discriminatory event occurred in November 2008, but Complainant did not initiate contact with an EEO counselor on the matter until December 7, 2013, five year later.
In her request for reconsideration, Complainant now argues that her delay in contacting an EEO counselor should be excused for two reasons. First, she asserts she did not reasonably suspect she had been subjected to disability discrimination when her position was abolished in November 2008 until she received an arbitration decision upholding the Agency's action on December 3, 2013. The arbitrator reasoned that the Agency had established that Complainant was not medically qualified to perform her duties on Tour 2, which resulted in the decision to reassign her to Tour 3. Second, she argues that even if it is found that she reasonably suspected discrimination at an earlier date, she did not know that she could proceed with an EEO complaint prior to receiving the arbitrator's decision on her grievance.
First, we note that Complainant failed to raise either of these arguments during her initial appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. 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.
Moreover, we are not persuaded by either of Complainant's arguments. First, it is undisputed that Complainant did not seek EEO counseling until five years after her position on Tour 2 was abolished. While she argues that she did not suspect that her disability played a role in the abolishment decision, the record does not support this claim. First, Complainant was on limited duty in 2008 as a result of carpal tunnel syndrome, and in September 2008 had provided the Agency with the results of a medical examination and a list of medical restrictions. It seems reasonable that she should have suspected her medical condition/restrictions played a role when only two months later her position was abolished. Instead, she argues that it never occurred to her that her medical condition might have played a role in the Agency's action. Complainant promptly filed a union grievance over the action asserting a violation of the contract, but failed to contact an EEO counselor.
Complainant maintains that throughout the grievance process, she still did not suspect disability discrimination. However, we note that Complainant admits in her argument in support of her request for reconsideration that, on October 10, 2013, during her arbitration hearing, the Agency specifically argued that her medical restrictions resulted in the decision to abolish her position. The arbitrator's decision, which is part of the record, confirms this. Therefore, at the very latest, this was the point where Complainant should have reasonably suspected disability discrimination occurred. However, she waited until December 7, 2013, still beyond the 45-day limitation period to initiate contact with an EEO counselor.
Complainant also argues that her long delay should be excused because, although generally familiar with the EEO process, she did not know that she could seek EEO counseling until after the arbitration decision was issued. Notably, Complainant cites no authority to support the contention that her unawareness of her legal rights requires the waiver or extension of the EEO counseling deadline. This appeal is governed by our decision in Wood v. Secretary of the Navy, EEOC Request No. 05901196 (April 10, 1991), which involved a complainant's untimely filing of a constructive discharge claim. The complainant urged waiver of the filing deadline on the ground that he was unaware he had a possible cause of action. Noting the distinction between ignorance of the law and ignorance of relevant facts, the Commission did not excuse the untimely filing in Wood, reasoning that complainant had a duty to undertake reasonable efforts to ascertain his legal rights.
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. 0120141635 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. 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 21, 2016
__________________
Date
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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