Martina S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2019005259 (E.E.O.C. Dec. 18, 2019)

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

Martina S.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Request No. 2019005259

Appeal No. 0120181234

Hearing No. 440-2018-00028X

Agency No. 4J-606-0025-17

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Martina S. v. U.S. Postal Serv., EEOC Appeal No.
0120181234 (May 29, 2019). 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 former Agency employee and applicant for re-
employment, claimed that she was discriminated against in reprisal for her prior protected EEO
activity when, on November 14, 2016, she was informed that she would not be hired by the
Agency.

Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge but subsequently withdrew her request.

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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As a result, the Agency issued a final decision wherein it found that no reprisal occurred.
Complainant had applied for two positions but did not receive an interview for either position and
was not selected for either position. The Agency determined that management articulated
legitimate, non-retaliatory reasons for not selecting Complainant. In particular, Complainant was
not considered for either position because she had previously been removed from employment
with the Agency for cause for failure to report an accident. The Agency concluded that
Complainant failed to show that management’s reasons were pretextual. As a result, the Agency
found that Complainant had not been subjected to reprisal as alleged.

On appeal, the Commission affirmed the Agency’s final decision. We found that the Agency
articulated a legitimate, non-retaliatory reason for its actions that was not shown to be pretextual.
Specifically, Complainant had previously been removed for cause and the Agency’s policy was to
not re-hire individuals who have been previously removed for cause.

In her request for reconsideration, Complainant challenges the integrity of two management
officials. In response, the Agency asserts that Complainant’s request to reconsider contains only
her arguments about and objections to issues surrounding her underlying removal, which is not at
issue in the instant matter. The Agency notes that Complainant has previously unsuccessfully
challenged her removal. The Agency maintains that Complainant has not identified any reason
for the Commission to reconsider its previous decision.

The Commission emphasizes that a request for reconsideration is not a second appeal. 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 reason for not rehiring her was pretext
intended to hide retaliatory 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. 0120181234 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.

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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

December 18, 2019
Date