Xavier P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 25, 20180520180374 (E.E.O.C. Sep. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Xavier P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Request No. 0520180374 Appeal No. 0120180972 Agency No. 4B-100-0010-18 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120180972 (April 4, 2018). 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). Complainant, a Custodial Laborer, filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race, national origin, age, and reprisal by denying him official time for EEO matters and by denying him the services of a union steward. The Agency dismissed the complaint for failure to state a claim. In our previous decision, we affirmed the dismissal of the claim pertaining to the union steward, finding that the allegation constituted a collateral attack upon the Agency’s negotiated grievance process. 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. 0520180374 2 However, we vacated the Agency’s dismissal of the claim pertaining to denial of official time and ordered the Agency to investigate that claim. 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), at 9-18 (August 5, 2015); see, e.g., Lopez v. Department of Agriculture, EEOC Request No. 0520070736 (August 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. He has not presented any argument or evidence tending to establish the existence of either reconsideration criterion. He merely reargues his appeal on the merits, raising the same contentions that we rejected in our previous decision. 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. 0120180972 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER Within sixty (60) calendar days of the date this decision is issued, the Agency shall take the following actions: 1. The Agency shall investigate the issue of whether Complainant was denied a reasonable amount of official time in connection with his personal EEO complaint activity. The Agency shall include in the record documentation showing how much time was requested, for what stated purpose, how much time was granted, if any, and the justification for the denial of any requested time. 2. The Agency shall notify Complainant of the opportunity to place into the record any evidence supporting his claim that he was denied a reasonable amount of official time. 3. The Agency shall issue a decision as to whether Complainant was denied a reasonable amount of official time. The Agency’s decision shall provide appeal rights to this Commission. A copy of the decision must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. 0520180374 3 Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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-16(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. 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. 0520180374 4 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 25, 2018 Date Copy with citationCopy as parenthetical citation