[Redacted], Samuel R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 4, 2021

Appeal No. 2020000246 (E.E.O.C. Oct. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Request No. 2021003860 Appeal No. 2020000246 Hearing No. 471-2017-0014X Agency No. 4J-481-0017-16 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Samuel R. v. U.S. Postal Service, EEOC Appeal No. 2020000246 (May 24, 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 a Distribution Operations Supervisor, EAS- 17, at the Agency’s Processing and Distribution Center in Detroit, Michigan. Before filing the instant formal complaint, Complainant filed a prior EEO complaint (Agency No. 1J-483-0036-13), where he claimed that the Agency discriminated against him based on race 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. 2021003860 2 (African-American), sex (male) color (Black), disability (bi-polar disorder), and in reprisal for prior protected EEO activity when Complainant was called a racial slur by his manager, placed and kept in an emergency off-duty status, and issued a letter of warning. Following a hearing on the matter, an EEOC Administrative Judge (AJ1) issued a November 15, 2016 decision in Complainant’s favor. AJ1 further ordered, in pertinent part, the following remedies:2 • Retroactive reinstatement with backpay, leave, and benefits. • Compensatory damages in the amount of $250,125. • Training for and consideration of disciplinary action against the responsible management officials. • Attorney’s fees and costs in the amount of $100,936.77. • Posting a notice that unlawful discrimination had occurred at the facility. While the prior complaint was still pending before AJ1, Complainant filed the instant complaint (identified as Agency No. 4J-481-0017-16) on February 22, 2016, and claimed that the Agency discriminated against him based on disability (stress) and in reprisal for prior protected EEO activity when on October 5, 2015, Complainant was sent for a second fitness-for-duty (FFD) examination. The Agency initially dismissed this complaint on procedural grounds. However, on appeal, the Commission reversed the dismissal and remanded the claim to the Agency for further processing. See Barry G. v. U.S. Postal Serv., EEOC Appeal No. 0120161529 (June 28, 2016). On remand, the Agency investigated the instant complaint and Complainant requested a hearing, but subsequently withdrew his request. The Agency issued a final decision finding no discrimination. Complainant appealed. Our prior decision found that the Agency correctly determined that Complainant’s claim regarding the second FFD raised in the instant complaint was moot, pursuant to 29 C.F.R. § 1614.107(a)(5). The prior decision explained that the likelihood of the Agency attempting to remove Complainant from the payroll was extremely remote in light of the remedies Complainant was awarded and provided in Agency No. 1J-483-0036-13. The record indicates that AJ1 ordered that Complainant’s reinstatement and backpay begin from November 2013, which occurred well before Complainant’s allegation that he was subjected to a second FFD exam in October 2015. Consequently, the prior decision explained that Complainant would have received all the relief he was entitled to by AJ1 even if he had prevailed on the instant complaint. 2 The Commission determined, in EEOC Appeal No. 0120171054 (Feb. 21, 2019), that AJ1’s remedies awarded constituted full relief. Additionally, the compliance report and documentation submitted in support of that appeal demonstrated that the Agency had completed all elements of the relief specified in AJ1’s order. 2021003860 3 A review of Complainant’s October 9, 2019 appellate brief in response to the Agency’s August 19, 2019 final decision finding no discrimination for the instant complaint reflects that Complainant argued that: (1) the second FFD exam was retaliatory and a per se violation; (2) the accepted issues were not properly framed; (3) the second FFD exam functioned to keep Complainant off work; and (4) Complainant should be granted the relief he requested in his affidavit. Complainant also indicated that he suffered “humiliation and embarrassment” after he attended the second FFD exam. However, Complainant did not provide additional details in support of an award of additional compensatory damages. A review of the report of investigation for the instant complaint indicates that Complainant requested: (1) restoration of his position with fullback pay and benefits; (2) $300,000 in compensatory damages; (3) payment of attorney’s fees; (4) training for the responsible management officials; (5) the posting of the finding of discrimination in the office; and (6) removal of the FFD request and results from his record. As previously explained, many of these remedies were already ordered by AJ1 and subsequently provided by the Agency. In the instant request for reconsideration, Complainant submits, through counsel, a statement expressing disagreement with the appellate decision 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. 2020000246 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. 2021003860 4 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 October 4, 2021 Date