[Redacted], Kyong L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 10, 2022

Appeal No. 2020003693 (E.E.O.C. Jan. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyong L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Request No. 2021004443 Appeal No. 2020003693 Hearing No. 541-2018-00113X Agency No. 4F-913-0185-09 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Kyong L. v U.S. Postal Service, EEOC Appeal No. 2020003693 (July 21, 2021). 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). During the period at issue, Complainant worked as Mail Processing Clerk at the Monrovia Post Office in Monrovia, California. On March 29, 2009, Complainant filed a formal EEO complaint claiming that the Agency unlawfully retaliated against her for prior protected EEO activity2 when, on April 8, 2009, she 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. 2021004443 2 was told there was no work available for her within her medical restrictions and she was sent home. Initially, the Agency determined that the complaint was identical to a claim raised in a class complaint identified as Agency No. 4B-140-0062-06. The Agency therefore placed Complainant’s complaint in abeyance pending the outcome of an appeal related to the class action. Complainant appealed and the Commission determined that Complainant’s claim of unlawful retaliation, unlike her disability claim, should not have been held in abeyance and remanded this claim to the Agency for investigation. See EEOC Appeal No. 0120093806 (July 29, 2011). Following an investigation of the remanded claim, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, on October 16, 2015, the AJ issued a decision by summary judgment finding no retaliation was established as alleged. Complainant again appealed. On appeal, the Commission reversed the summary judgment decision and remanded the formal complaint for a hearing. See EEOC Appeal No. 0120160752 (June 19, 2018). The AJ ordered both a supplemental investigation and held a hearing on April 23, 2019. On October 24, 2019, the AJ issued a decision concluding Complainant had established that the Agency retaliated against her when on April 8, 2009, she was sent home. The AJ awarded Complainant $4,500 in compensatory damages, but determined that Complainant failed to mitigate her damages, and therefore, concluded she was not entitled to backpay. Complainant had argued that she mitigated her damages when she went on Office of Workers’ Compensation Program (OWCP) benefits after she was sent home on April 8, 2009, to offset her lost wages. Nevertheless, the AJ determined in a December 23, 2019 Order that Complainant failed to mitigate her damages and denied an award of backpay because: (1) Complainant’s OWCP benefits did not result from an injury caused by the Agency’s retaliation on April 8, 2009; (2) Complainant resumed receiving OWCP benefits related to 1989 and 2006 injuries when she was sent home on April 8, 2009; and (3) Complainant failed to seek work outside the Agency. However, the AJ determined that Complainant was entitled to reinstatement and ordered the Agency to reinstate her to clerk position at the Monrovia Post Office with duties within her medical restrictions. On January 29, 2020, the Agency issued a final order implementing the AJ’s finding of discrimination and the relief ordered. Complainant appealed the AJ’s determination on backpay. Our prior decision in Appeal No. 2020003693 found that the AJ properly determined that Complainant was not entitled to backpay because she made inadequate efforts to mitigate her damages.3 2 The record supports that Complainant filed prior EEO complaints in 2006 and 2008. 3 The Commission has established that an agency must show: (1) the complainant failed to use reasonable care and diligence in seeking a suitable position; and (2) there were suitable positions available which complainant could have discovered. However, an agency does not have to show that there were available suitable positions if Complainant does not make an effort to mitigate 2021004443 3 The prior decision explained that Complainant testified that she never looked for jobs outside of the Agency after 2006. Our decision further explained that Complainant indicated that she would have filed for disability retirement if her OWCP benefits ended, and consequently, it was reasonable for the AJ to determine that Complainant never intended to seek other employment. Additionally, the prior decision distinguished Complainant’s circumstances from the complainant in Paolozzi v. U.S. Postal Service, EEOC Request No. 05920423 (Aug. 3, 1992), reasoning that the complainant in Paolozzi had provided evidence of his duty to mitigate. Specifically, the complainant explained that he did not seek outside employment because there was no qualifying job that would have paid him more than the OWCP benefits he was receiving. However, Complainant has not provided similar evidence. Therefore, the Commission affirmed the AJ’s denial of backpay. Regarding Complainant’s entitlement to a nonpecuniary compensatory award, the prior decision raised the AJ’s award of $4,500 to $7,500.4 In the instant request for reconsideration, Complainant submits, through counsel, a statement expressing disagreement with the appellate decision, specifically the denial of backpay, and reiterating arguments previously made on appeal. However, we emphasize 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 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. 2020003693 remains the Commission's decision. To the extent it has not already done so, the Agency shall comply with the orders in that appellate decision. There is no further right of administrative appeal on the decision of the Commission on this request. damages and does not explain the lack of effort. See Simmons v. U.S. Postal Service, EEOC Petition No. 04930005 (Dec. 10, 1993). 4 The prior decision also determined that the AJ improperly determined that the Agency had already awarded Complainant $1,750 in compensatory damages related to Complainant’s class action complaint. 2021004443 4 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 10, 2022 Date