0520160104
03-15-2016
Lonnie H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lonnie H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520160104
Appeal No. 0120111230
Hearing No. 370-2005-0051X
Agency No. 4F-940-0033-03
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120111230 (October 22, 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).
During the period at issue, Complainant worked as a Special Delivery Messenger for the Agency's San Francisco, California facility. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability and in reprisal for prior EEO activity.
In the prior decision, the Commission determined that the issues presented were whether the Agency had fully complied with the Order in EEOC Appeal No. 0720070019, and whether Complainant had obtained full relief. The prior decision affirmed in part the Agency's determination of compliance with the order. However, the Commission reversed in part the Agency's determination, and remanded the matter to the Agency for further action. Specifically, the Commission ordered the Agency to produce a report showing Complainant's entitlement to reimbursement for health care benefits, as delineated in the prior decision. The Commission also ordered that the Agency delineate in a chart, the time period from December 7, 2001 through December 19, 2009; the amount to be reimbursed Complainant; explanation for why Complainant is or is not receiving payment for any particular segment of that period; and proof of payment.
In his Request for Reconsideration, Complainant argues that the Agency had not complied with the Order in EEOC Appeal No. 0120111230. Complainant's arguments on his request for reconsideration encompass a variety of matters, including the assertion that the Commission "characterizes the brief they accepted from the Agency as a progress report detailing the Agency's then-on-going efforts to comply with the AJ's September 2006 order to reinstate/place me in a position to reasonably accommodate me. This is hogwash. In this brief the Agency engaged in ad hominum attacks on my character (about how I 'cleverly' avoided returning to work) and then the Agency goes on to mislead the commission about their efforts to comply with the AJ's decision. Yet the Commission rejects my brief that includes medical evidence...that describes the effects of their non-compliance on my health, along with the Agency's own letters that contradicts their contentions in that late brief."
Further, Complainant states, "I believe that sometimes a wrong interpretation and decision can be handed down. This is what I believe happened in this case. Surely this case fall into that category where late submissions were accepted from one party only and where the Commission raises issues and made arguments that the Agency did not make." Complainant argues that he should be entitled to a variety of matters, including being paid extra tax liability as a result of the lump sum payment; interest on the compensatory damages from the date ordered by AJ's decision until the Agency's appeal was denied; should not have been forcibly retired; to be compensated for the time period from when the reinstatement was ordered until a position is finally offered.
However, Complainant's arguments in support of his request for reconsideration concern matters that clearly have been raised, or certainly could have been raised, during the original appeal. In this regard, 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.
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. 0120111230 remains the Commission's decision. The Agency is directed to comply with the Order of the previous decision set forth below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ORDERED to take action within sixty (60) days of the date this decision becomes final, as stated in EEOC Appeal No. 0120111230. Specifically, the Agency is to take the following action:
The Agency shall produce a report showing Complainant's entitlement to reimbursement for health care payments as delineated. The Agency shall delineate in a chart, the time period from December 7, 2001 through December 19, 2009; the amount due to be reimbursed Complainant; explanation for why he is or is not receiving payment for any particular segment of that period; and proof of payment.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting verifying the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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 Complainants 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
March 15, 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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