Leisa C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionOct 31, 20180520180502 (E.E.O.C. Oct. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leisa C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Request No. 0520180502 Appeal No. 0120172272 Hearing No. 541-2014-00128X Agency No. 1E-801-0006-14 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172272 (June 15, 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). In her underlying complaint, Complainant, a Mail Processing Clerk, claimed that she was discriminated against on the bases of her sex (female), age (48), race (African-American), disability (shoulder strain and upper right disorder of the bursa tendons) and in reprisal for her prior protected EEO activity when: 1. On October 28, 2013 Complainant became aware that management was utilizing two employees to fulfill the duties for a position Complainant was told was no longer available in 2011; and 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. 0520180502 2 2. On November 23, 2013, Complainant received a letter dated November 20, 2013, informing her that she was being reassigned. The EEOC Administrative Judge (AJ) granted the Agency’s motion for summary judgment. The AJ found that no discrimination occurred. With regard to claim (1), the AJ noted that the two employees being used to perform the duties of Complainant’s prior modified assignment were Postal Support Employees, unlike Complainant who is a full-time regular employee. In terms of claim (2), the AJ found that Complainant proffered no evidence that she was treated differently from any other unassigned/unencumbered full-time regular employee, and that she also did not proffer evidence that the Agency’s reason for attempting to place her in a residual vacancy was pretext for discrimination or reprisal. The AJ observed that Complainant wanted to be returned to the modified job position she held until January 2010. However, the AJ stated that Complainant did not proffer evidence that the modified duties comprised a full-time position. In its final order, the Agency implemented the AJ’s Decision. On appeal, the Commission affirmed the Agency’s final order. We found that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. In her request for reconsideration, Complainant contends that she established a prima facie case of reprisal. Complainant argues that she was a Mail Processing Clerk, grade level six, but that after filing an EEO complaint on October 28, 2013, she was reassigned on November 23, 2013, to a significantly different job with significantly different responsibilities. Complainant states she was reassigned to a grade level seven Sales Service Associate/Window Clerk position with required passing qualifications. Complainant states that she did not pass the test. According to Complainant, she should have been given a choice/option of reassignment based on seniority. Complainant maintains that a more suitable position for her would have been the vacancy for a level six Mark-Up Clerk position. In response, the Agency asserts that Complainant did not identify any erroneous aspects of the Commission’s previous decision and also did not argue that the Commission’s decision will have a substantive impact on its policies, practices, or operations. 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 not presented any evidence establishing that the Commission erred in finding that the AJ properly granted summary judgment in this matter. 0520180502 3 Moreover, the Commission finds that Complainant has not presented any evidence to support reconsideration of the Commission’s finding that he failed to show that she was subjected to discrimination or reprisal. 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. 0120172272 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 October 31, 2018 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milton D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Request No. 0520180503 Appeal No. 0120181322 Agency No. 1B072007615 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181322 (June 7, 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). In his underlying complaint, Complainant alleged that the Agency subjected him to unlawful discrimination on the bases of race (Native American), national origin (Native American), sex (male), religion (Baptist/Christian), color (brown), age (45) disability, and in reprisal for prior protected EEO activity when: 1) the assignments in his pay location were not rotated equally and his supervisor told him that only the women were allowed to key; 2) his supervisor told all employees in his work area that he was the reason they were not allowed to work overtime; 3) he was given two pre-disciplinary interviews; 4) he was assigned extra work duties on three belts; and 5) his co-worker made inappropriate remarks and no action was taken. 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. 0520180503 2 Following an investigation, the matter was assigned to an EEOC Administrative Judge (AJ) for a hearing. The AJ granted the Agency’s Motion for Summary Judgment and found that Complainant had not been subjected to discrimination or reprisal as alleged. In its final order, the Agency fully implemented the AJ's decision. On appeal, the Commission affirmed the Agency's final order, finding that Complainant failed to identify a genuine issue of material fact requiring a hearing and that he did not establish that she was subjected to discrimination or reprisal. In his request to reconsider, Complainant sets forth factual matters he did not raise in the course of the investigation conducted below.2 These issues will not be addressed for the first time in connection with a request to reconsider. We find that Complainant’s arguments do not 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. Accordingly, we find that Complainant has failed to demonstrate that the Commission should reconsider its appellate 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. 0120181322 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. 2 The record reflects that Complainant failed to provide an affidavit when requested to do so during the course of the investigation. See, Report of Investigation at 35. 0520180503 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 October 31, 2018 Date Copy with citationCopy as parenthetical citation