Casandra N., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 12, 20170520170415 (E.E.O.C. Oct. 12, 2017) Copy Citation 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 2 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 3 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 Copy with citationCopy as parenthetical citation