Reuben D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 16, 20160520170003 (E.E.O.C. Dec. 16, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reuben D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Request No. 0520170003 Appeal No. 0120160972 Agency No. 1B-031-0015-15 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in Reuben D. v. U.S. Postal Serv., EEOC Appeal No. 0120160972 (Aug. 10, 2016). 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). On March 9, 2015, Complainant filed a formal complaint (Agency No. 1B-031-0008-15) alleging that the Agency discriminated against him on the bases of race (Asian), color (brown), and national origin (Indian) when: 1. On February 5, 2015, Complainant was issued a Seven-Day Suspension; and 2. On February 20, 2015, Complainant’s supervisor told him to punch out and go home, resulting in loss of overtime. 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. 0520170003 2 Following an investigation, Complainant did not request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). As a result, the Agency issued a final Agency decision (FAD-1) finding that Complainant had not been discriminated against as alleged. Complainant subsequently filed an appeal with the Commission (docketed as EEOC Appeal No. 0120152784). On June 23, 2015, Complainant filed a second formal complaint (Agency No. 1B-031-0015- 15) alleging that Agency discriminated against him on the bases of national origin (Indian) and in reprisal for prior protected EEO activity when: 1. On May 17, 2015, Complainant’s supervisor harassed him when he stated in a demeaning manner: “Listen, listen, listen, English is not my second language, do you understand?”; and 2. On May 23, 2015, Complainant was issued a Notice of 14-Day Suspension. Following an investigation, Complainant did not request a hearing before an AJ. As a result, the Agency issued a final Agency decision (FAD-2) finding that Complainant had not been discriminated against as alleged. Complainant subsequently filed a second appeal with the Commission (docketed as EEOC Appeal No. 0120160972). On February 26, 2016, Complainant filed a third formal complaint (Agency No. 1B-031-0006- 16) alleging that the Agency discriminated against him on the bases of race (Asian) and in reprisal for prior protected EEO activity when: 1. On January 16, 2016, Complainant’s lunch and break times were changed; and 2. On January 30, 2016, Complainant was given a Pre-Disciplinary Interview. On March 2, 2016, the Agency issued a final Agency decision (FAD-3) dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant subsequently filed a third appeal with the Commission (docketed as EEOC Appeal No. 0120161757). The Commission consolidated the three appeals for one decision. In Reuben D. v. U.S. Postal Serv., EEOC Appeal Nos. 0120152784, 0120160972, and 0120161757 (Aug. 10, 2016), the Commission affirmed FAD-1 and FAD-2, finding that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment. Additionally, the Commission determined that the Agency properly dismissed the complaint in FAD-3. In his request for reconsideration, Complainant only challenges the Commission’s appellate decision from FAD-2 (EEOC Appeal No. 0120160972). Complainant contends that previously provided evidence shows that the Commission erroneously interpreted material facts. Further, Complainant reiterates his argument that the Agency’s reasons for its actions were pretextual. 0520170003 3 The Commission finds that the matters raised by Complainant in the instant request were raised in the previous decision and fully considered. The Commission emphasizes 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) (Aug. 5, 2015), at 9-18; 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. Complainant has presented no evidence or persuasive arguments to support his request. 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 Reuben D. v. U.S. Postal Serv., EEOC Appeal No. 0120160972 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 0520170003 4 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 16, 2016 Date Copy with citationCopy as parenthetical citation