Tessa G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 5, 20180520170164 (E.E.O.C. Apr. 5, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Request No. 0520170164 Appeal No. 0120141345 Hearing Nos. 370-2002-02336X, 370-2000-02881X; 370-2000-02282X Agency Nos. 1F-946-0048-01, 4F-945-0038-98, 1F-946-0064-98 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120141345 (December 28, 2016). 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 the underlying complaints, Complainant alleged that she was subjected to discrimination on the bases of sex, race, disability, and reprisal when: (1) she was not selected for the position of 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. 0520170164 2 Labor Relations Specialist, EAS-17; (2) she was terminated from her limited duty assignment; and (3) her permanent duty job offer on Tour 2 was eliminated and she was told to report to Mail Processing on Tour 3. Following a hearing, an EEOC Administrative Judge (AJ) issued a decision finding that Complainant had been discriminated against and ordered relief, including retroactive promotion and back pay. The Agency’s final order fully implemented the AJ’s decision. Complainant initially appealed to the Commission in EEOC Appeal No. 0120072120 (Jan. 6, 2010), claiming that the Agency was not in compliance with the Order of the AJ and its own order. The Commission ordered the Agency to take a number of remedial actions. In response to a petition for enforcement, the Commission ordered that the Agency undertake a supplemental investigation to determine the adequacy of its compliance with the final order and our Order in EEOC Appeal No. 0120072120. See EEOC Petition No. 0420120009 (Sept. 13, 2013). At the conclusion of the supplemental investigation, the Agency issued a final decision finding that it was in compliance with the order. From that decision, Complainant appealed. Our previous decision in EEOC Appeal No. 0120141345 (Dec. 28, 2016) affirmed the Agency’s finding that it had complied with the orders in the previous decisions but remanded for a determination of Complainant’s entitlement to an award of attorney’s fees and costs with respect to one issue. In her request to reconsider, Complainant argues that the previous decision should be reconsidered because: 1) Complainant has not been properly compensated for the tax consequences resulting from a lump sum payment she received in 2010; and 2) Complainant was improperly denied reimbursement for attorney’s fees and costs related to a broad range of issues. As the Agency correctly notes, the issue of tax consequences to Complainant for tax year 2010 was not raised by Complainant in connection with the previous decision. Similarly, the scope of the issue of attorney’s fees raised in relation to the previous decision was very limited. The previous decision granted Complainant’s request for attorney’s fees and costs incurred on issues related only to Complainant’s Thrift Savings Program (TSP) Account. Complainant now seeks, through her request for reconsideration, to expand that issue to an award of “attorney’s fees and costs incurred on [all non-TSP issues]” since January 6, 2010. The arguments contained in the instant request as pertains to Complainant’s entitlement to attorney’s fees incurred since 2010 were considered and addressed in the previous appeal. The Commission’s scope of review on a request for reconsideration is narrow and is not merely a form of a second appeal. 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). 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. 0120141345 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. 0520170164 3 ORDER If Complainant has been represented by an attorney (as defined 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney’s fees incurred with regard to the clarification of the Thrift Savings Plan issue only. Complainant’s attorney shall submit a verified statement of fees to the Agency - - not to the Equal employment Opportunity Commission, Office of Federal Operations - - within thirty (30) calendar days of this decision is issued. The Agency shall then process the claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-l6(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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. 0520170164 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 April 5, 2018 Date Copy with citationCopy as parenthetical citation