0520130181
05-31-2013
Marco A. Sanchez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Marco A. Sanchez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 0520130181
Appeal No. 0120122488
Agency No. 1J-603-0029-11
DENIAL
Complainant timely requested reconsideration of the decision in Marco A. Sanchez v. U.S. Postal Service, EEOC Appeal No. 0120122488 (November 15, 2012). 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(b).
Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), and disability (rotator cuff tear/right shoulder injury) when: (1) on August 15, 2011, the Agency sent Complainant home, citing no work available within his medical restrictions, and denied Complainant reasonable accommodation and (2) from August 4. 2011, to August 15, 2011, Complainant's supervisor threatened Complainant, required him to remain isolated in a secure room, and did not allow him to speak with others or read any material other than the Agency link. Complainant alleged that the actions alleged in claim (2) constituted harassment.
In its final decision, the Agency found that Complainant failed to prove that the Agency subjected him to unlawful discrimination or harassment. In our previous decision, the Commission affirmed the Agency's findings. Specifically, the Commission found that Complainant failed to show that the reasons articulated by the Agency for its actions were pretexual. Having assumed for the sake of analysis that Complainant was an individual with a disability, the Commission further found that Complainant failed to prove that he was a qualified individual with a disability because the evidence revealed that Complainant was unable to perform the essential functions of his Clerk position. The Commission noted that Complainant asserted that the Agency could have reassigned him to a position as a security officer, employee liaison, Hispanic coordinator, mechanic, or custodian, but did not establish that there were vacancies during the relevant time period to which he could have been reassigned. With further regard to claim 2, the Commission found that the alleged actions did not rise to the level of a hostile work environment, and Complainant did not prove that the actions were based on his protected classes.
In his request for reconsideration, Complainant argues that he was not offered modified assignments, and the Agency did not consider reassigning him to another position.
We note 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has failed to demonstrate that either standard for reconsideration has been met in this case.
Complainant argues that he was not offered modified assignments, and that the Agency did not consider reassigning him to another position. However, as our previous decision determined, Complainant failed to show that there were vacant, funded positions to which he could be reassigned during the relevant time period. Moreover, we note that Complainant's medical documentation revealed that he could not use his right arm, which made it particularly difficult for the Agency to find positions to which Complainant could be reassigned. Additionally, the Agency engaged in the interactive process by seeking a position within Complainant's medical restrictions and requesting approval of medical restrictions by Complainant's physician, but Complainant acknowledged that he failed to submit the requested documentation during the relevant time period. In his request for reconsideration, Complainant maintains that he submitted the requested medical documentation to the Agency on September 2, 2012, but September 2, 2012, was far beyond the relevant time period at issue in this case.1 As such, we find that Complainant failed to prove that our previous decision was erroneous.
Therefore, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120122488 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 31, 2013
Date
1 The Agency issued its final decision on this matter on April 9, 2012, and Complainant filed his appeal to the Commission on May 14, 2012.
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0520130181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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