Karol K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Feb 2, 2018

0520180014 (E.E.O.C. Feb. 2, 2018)

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

Karol K.,1
Complainant,

v.

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

Request No. 0520180014

Appeal No. 0120160330

Hearing No. 520-2014-00150X

Agency Nos. 1B-012-0010-14
1B-012-0001-14
1B-012-0009-13

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120160330 (August 16, 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 her underlying complaint, Complainant claimed that she was discriminated against on the
bases of her sex (female), race (Caucasian), religion (“Non-Practicing”), age (56), and in reprisal
for her prior EEO when:

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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1. On an unspecified date, the Agency did not use Complainant as a PEDC Training
Technician.

2. On an unspecified date, Complainant was denied HAZMAT/BIOD/HSZWOPER
Spill team training.

3. On an unspecified date, Complainant was denied mailroom training.

4. On an unspecified date, Complainant was denied office clerk training.

5. From June 2012 to August 2013 and since November 24, 2013, Complainant has
been denied expeditor training.

6. On an unspecified date, Complainant was denied orientation clerk training.

7. From 2006 to 2012, on July 24, 2014, and other unspecified dates, Complainant was
not used as a PEDC Training Technician.

8. On an unspecified date, Complainant learned that a coworker received a monetary
award for improperly being denied work on the spill team. With respect to this claim,
Complainant added the basis of color (white).

9. In February-March 2014, Complainant was not afforded the same training
opportunities as another clerk.

10. On unspecified date(s) and ongoing, the Agency denied her training, to include, but
not limited to, mail flow coordinator and Special Clerk Drop shipment. With regard
to this claim, Complainant added the basis of disability (left
back/shoulder/cervical/neck/insomnia/anxiety/stress).

11. On an unspecified date and ongoing, Complainant was harassed when she was
subjected to verbal abuse and observation, including being instructed as to which
bathrooms/hallways to use, and she was not allowed higher level assignments or
overtime.

An EEOC Administrative Judge (AJ) found by summary judgment that no discrimination
occurred. The AJ found that Complainant failed to establish a prima facie case of discrimination
under the alleged bases with regard to claims (1-8). With regard to claims (9-10), the AJ stated
that even if it is assumed Complainant set forth a prima facie case under the alleged bases, the
Agency articulated a legitimate, nondiscriminatory reason for its action, that being Complainant
did not bid on and receive certain positions. The AJ stated there is no evidence of pretext. As
for claim (11), the AJ stated that the claims about overtime and higher level assignments are
unfounded. The AJ stated that the matter concerning which bathrooms/hallways to use had
nothing to do with any of the bases alleged. As to the alleged verbal abuse, the AJ stated that
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being yelled at by itself is not sufficiently severe or pervasive to constitute harassment. The
Agency issued a final order wherein it adopted the AJ’s finding of no discrimination.

On appeal, the Commission affirmed the Agency’s final order. The Commission stated that even
construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable
fact-finder could not find in Complainant’s favor.

In her request for reconsideration, Complainant contends that the report of investigation is both
inaccurate and incomplete. Complainant maintains that she was denied discovery and that
discovery could have further developed and supported her case.

In response, the Agency asserts that Complainant disregarded the AJ’s directive to specifically
identify the dates for the overtime, training, and higher level opportunities she alleges she was
denied. The Agency notes that the AJ stated that Complainant’s failure to identify the date(s) at
issue made it difficult if not impossible to determine whether her claims were timely, and thus
properly before the Commission. The Agency argues that there is no reason for a discovery
period for Complainant to provide these dates as she was already afforded an opportunity to do
so.

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), Chap. 9 § VI.A (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 presented any persuasive evidence to support reconsideration of
the Commission’s decision. Complainant has failed to establish that the Agency’s reasons for its
actions in the matters at issue were pretext intended to hide discriminatory motivation

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. 0120160330 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.
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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

February 2, 2018
Date