[Redacted], Trey M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionSep 16, 2021Appeal No. 2021002877 (E.E.O.C. Sep. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trey M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Request No. 2021003584 Appeal No. 2021002877 Hearing No. 430-2017-00478X Agency No. 4K-270-0057-17 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Trey M. v. U.S. Postal Service, EEOC Appeal No. 2021002877 (Apr. 26, 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 City Carrier, Q-01, at the Agency’s Durham East Station in Durham, North Carolina. 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. 2021003584 2 On February 21, 2017, Complainant filed a formal complaint claiming that the Agency discriminated against him based on race (African American), sex (male), and in reprisal for prior protected EEO activity when he was subjected to sexual harassment from July 2016 to February 2017 by a female co-worker who management assigned to assist him on his route. On November 27, 2017, the Agency issued a final decision finding no discrimination. However, on appeal, the Commission, in EEOC Appeal No. 0120180781 (July 23, 2019), reversed the Agency’s decision and found that the Agency liable for the discriminatory harassment. The Commission ordered the Agency to take several remedial actions including paying reasonable attorney’s fees. On October 31, 2019, the Agency issued a final decision on attorney’s fees and awarded Complainant $6,384. Thereafter, Complainant, through counsel, appealed. On the appeal form, Complainant’s attorney indicated that he received the Agency’s final decision on attorney’s fees on November 4, 2019. In EEOC Appeal No. 2021002877, the Commission determined that Complainant’s appeal was untimely filed. The Commission explained that, pursuant to 29 C.F.R. § 1614.402, Complainant had thirty (30) calendar days after receipt of the Agency’s final decision to timely appeal. The Commission determined that Complainant’s attorney received the Agency’s final decision on November 4, 2019. However, Complainant’s appeal was postmarked December 6, 2019, which was two days beyond the thirty-day limitation period. The Commission further determined that Complainant had not provided adequate justification to invoke waiver of the thirty-day limitation period. Therefore, the Commission dismissed Complainant’s appeal for untimeliness pursuant to 29 C.F.R. § 1614.403(c). In the instant request for reconsideration, Complainant, through counsel argues that his appeal was timely filed.2 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. 2 Complainant submits a sworn affidavit attesting that he took a picture of the priority mailing he delivered to his attorney on November 8, 2019. Complainant asserts that the mailing contained the Agency’s final decision and that November 8, 2019, was the date his attorney received the Agency’s final decision. Complainant submits a copy of the picture he took on November 8, 2019. However, this documentation does not dispute the determination that Complainant’s attorney indicated on the notice of appeal that he received the Agency’s final decision on November 4, 2019. 2021003584 3 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. 2021002877 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 September 16, 2021 Date Copy with citationCopy as parenthetical citation