Casandra N., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Oct 12, 2017

0520170415 (E.E.O.C. Oct. 12, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Casandra N.,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Request No. 0520170415

Appeal No. 0120171510

Agency No. 4G-335-0052-17

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120171510
(June 2, 2017). EEOC regulations provide that the Equal Employment Opportunity Commission
(EEOC or 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).

In her underlying complaint, Complainant claimed that she was discriminated against on the
basis of her race (African-American) when Agency management and the Union failed to
negotiate a Last Chance Agreement settlement for her, the Union withdrew her grievance, and
she learned that on December 6, 2016, two employees were reinstated after receiving Last
Chance Agreements.

In its final decision, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
on the grounds of untimely EEO Counselor contact. The Agency determined that Complainant

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.
0520170415

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failed to initiate contact with an EEO Counselor within the 45-day limitation period as the Union
withdrew Complainant’s grievance on August 8, 2016, but Complainant did not initiate EEO
contact until January 3, 2017. The Agency also dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) on the grounds of failure to state a claim. The Agency determined that
Complainant was using the EEO process to collaterally attack actions which occurred during the
grievance process. Moreover, the Agency stated that the withdrawal of the grievance was within
the sole discretion of the Union and management had no role in the decision. The Agency also
dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds that the
complaint states the same claim that is pending before or has been decided by the Agency or
Commission. The Agency determined that Complainant raised the same matter here as she did
in Agency No. 4G-335-0205-16, a complaint which Complainant withdrew during the informal
EEO counseling process.

On appeal, the Commission affirmed the Agency’s dismissal of the complaint. The Commission
found that Complainant’s January 3, 2017 EEO Counselor contact was untimely and that she
failed to provide sufficient justification for extending the 45-day limitation period. The
Commission stated that Complainant should have had a reasonable suspicion of discrimination
more than 45 days prior to her contact of an EEO Counselor. In light of our dismissal on this
basis, the Commission did not address the Agency’s alternative grounds for dismissal.

In her request for reconsideration, Complainant contends that the discriminatory act occurred on
December 6, 2016, when management reinstated two Caucasian employees and not her, even
though they were all guilty of the same offense, unsatisfactory attendance. Complainant
therefore maintains that her January 3, 2017 EEO Counselor contact was timely.

Upon review of the record, we find that the matter at issue is the denial of a last chance
agreement to Complainant during the grievance process. We find that a claim that the denial of a
last chance agreement was discriminatory is a collateral attack upon the grievance process and
thus fails to state a claim. See Complainant v. United States Postal Service, EEOC Appeal No.
01A25069 (April 10, 2003). 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 (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. 0120171510 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

0520170415

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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

October 12, 2017
Date