James R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters Area), Agency.

Equal Employment Opportunity Commission

May 30, 2018

0520180213 (E.E.O.C. May. 30, 2018)

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

James R.,1
Complainant,

v.

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

Request No. 0520180213

Appeal No. 0120172319

Agency No. 4V-711-0003-17

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172319 (December 19, 2017).
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).

In his underlying complaint, Complainant claimed that he was discriminated against in reprisal for
his prior EEO activity under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., when he was reassigned from the Maryland Vehicle Maintenance Facility
to the Capital Heights Post Office.

In its final decision, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
on the grounds that Complainant failed to initiate contact with an EEO Counselor in a timely
manner.

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.
0520180213

2
The Agency determined that Complainant was informed on December 22, 2016, that he was
reassigned from the Maryland Vehicle Maintenance Facility to the Capital Heights Post Office,
but he did not initiate contact with an EEO Counselor, until February 15, 2017, after the expiration
of the 45-day limitation period.

On appeal of the instant complaint, the Commission affirmed the Agency’s dismissal of the
complaint. The Commission found that Complainant presented no persuasive arguments or
evidence warranting an extension of the time limit for contacting an EEO Counselor. The
Commission further observed that Complainant filed a civil action and the parties agreed to settle
Complainant’s claims as of June 26, 2017. The Commission stated that the filing of the civil action
terminated our jurisdiction over Complainant’s claims.

In his request for reconsideration, Complainant argues that our decision could have a substantial
impact on the policies, practices and/or operations of the Agency with regard to involuntary
transfers. Complainant maintains that his EEO Counselor contact was timely since it was 42 days
after the alleged discrimination occurred. According to Complainant, he reported to his new
assignment on January 4, 2017, which he considers to be the date of the alleged discrimination
since he was no longer a Vehicle and Maintenance Facility employee or under the authority of the
Vehicle and Maintenance Facility Manager. Complainant acknowledges that on December 22,
2016, he received the letter informing him of the reassignment, but states he had scheduled leave
due to begin December 23, 2016, and could not report to the Capital Heights station until January
4, 2017.

We observe that Complainant has not presented sufficient persuasive evidence in support of his
position. The December 22, 2016 letter informing Complainant of his reassignment to the Capital
Heights facility stated that he was to report to that location immediately. We find that December
22, 2016, was the date of the alleged discrimination and not January 4, 2017, the date that
Complainant first reported to Capital Heights due to his use of leave. Therefore, we find that
Complainant’s EEO Counselor contact on February 15, 2017, was after the expiration of the 45-
day limitation period, and was untimely. 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 (Aug. 5, 2015); 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.2

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

2 We note that although the previous decision affirmed the Agency’s dismissal on the additional
basis of the settlement of Complainant’s civil action regarding an earlier EEO complaint, the
record is unclear that the settlement agreement was finalized or covered the instant complaint.
Therefore, we affirm on the discussed basis of untimely EEO contact only.
0520180213

3
deny the request. The decision in EEOC Appeal No. 0120172319 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

May 30, 2018
Date