0520150256
01-05-2016
Marni J.,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
Marni J.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Request No. 0520150256
Appeal No. 0120141249
Agency No. 4F-945-0005-14
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120141249 (January 28, 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).
At the time of events giving rise to the underlying complaint, Complainant was employed by the Agency as a Carrier Technician at the San Leandro, California Post Office. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race/national origin (Hispanic), sex (female), disability, age (over 40) and reprisal for her husband's prior EEO activity when, on October 11, 2013, an Agency official requested information from her physician about her medical status. A fair reading of the complaint and related materials shows that Complainant alleged that the Agency sought the medical information about her ability to return to work as part of her workers' compensation claim even though management was aware that she was seeking a disability retirement.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Our prior appellate decision affirmed Agency's decision.
In her request for reconsideration, Complainant, through her representative, expresses her disagreement with the previous decision. In essence, she raises two arguments in this request. First, she asserts that she has standing to raise a valid claim of unlawful retaliation for the prior EEO activity of her spouse rather than her own prior activity. Second, she asserts that she stated a viable claim because she can show that she had to seek additional medical treatment as a result of the Agency actions alleged in her complaint.
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. First, we recognize the validity of Complainant's argument that an aggrieved individual can raise a valid retaliation claim based on the prior protected activity of his or her spouse. However, our prior decision did not affirm the dismissal of the complaint based on the fact that the prior EEO activity was that of Complainant's husband. Rather, we found that the alleged Agency action itself, even if assumed to be true, was insufficiently severe or pervasive to state a valid claim of discriminatory or retaliatory harassment. Nothing Complainant has now raised changes this conclusion. Additionally, although Complainant claims to have suffered damages as a result of the incident at issue, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Service, EEOC Request No. 05950396 (January 26, 1996); Shrader v. Department of Agriculture, EEOC Appeal No. 01961499 (November 3, 1997).
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. 0120141249 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
January 5, 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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0520150256