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

Equal Employment Opportunity Commission

Apr 16, 2015

0520150073 (E.E.O.C. Apr. 16, 2015)

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

,
Complainant,

v.

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

Request No. 0520150073

Appeal No. 0120142018

Agency No. 1F-904-0062-13

DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal
Service, EEOC Appeal No. 0120142018 (October 2, 2014). 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).
The record indicates that in his complaint, Complainant alleged discrimination based on
race/national origin (Hispanic) and sex (male) when on or around October 2011, to on or about
May 2013, he worked on a detail at the Surface Transport Center (STC) and did not receive
out of schedule pay. Complainant indicated that on June 25, 2013, he was made aware by the
union that two employees were paid out of schedule premium for all the time they spent at the
STC unit while on detail and he was not. On April 28, 2014, the Agency dismissed the
complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency
found that the complaint constituted a collateral attack on the grievance procedure.
Specifically, the Agency stated that despite Complainant’s claim, the comparator employees
were paid out of schedule premium for the time worked at the STC through a grievance
settlement dated February 14, 2013.

Complainant appealed the Agency’s final decision. On appeal, Complainant contended that he
was being treated differently based on his protected classes and that other employees outside of
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his protected classes were paid out of schedule pay outside of the grievance process. Our
previous decision affirmed the Agency’s dismissal of the complaint as Complainant challenged
a monetary award given to other employees pursuant to a grievance settlement. In his request
for reconsideration, Complainant asserts the same argument he raised on his appeal.

After a review of the record, we find that to the extent that Complainant was alleging that he
was not paid out of schedule pay while he was on a detail at the STC during the relevant time
period at issue in accordance with a grievance settlement, he has not shown that our previous
decision involved a clearly erroneous interpretation of material fact or law. See Wills v. Dep’t
of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC
Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No.
05930106 (June 25, 1993). We note, however, that in our previous decision, we failed to
address Complainant’s other claim that he was treated differently based on his protected classes
when other employees outside of his protected classes were paid out of schedule pay outside of
the grievance process. Upon review, we find that to the extent that Complainant was alleging
that he was not paid out of schedule pay based on his protected classes outside of the grievance
process, the Agency should not have dismissed the subject claim as it sets forth an actionable
claim. See Complainant v. United States Postal Serv.

, EEOC Appeal No. 0120141098 (May
14, 2014).
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 with regard to Complainant’s claim collaterally attacking a
grievance settlement. The decision in EEOC Appeal No. 0120142018 remains the
Commission's decision with regard to Complainant’s claim collaterally attacking a grievance
settlement and there is no further right of administrative appeal on the decision of the
Commission on this matter. The Commission however VACATES Complainant’s claim only
with regard to his being differently treated based on his protected classes outside of the
grievance process and REMANDS this claim to the Agency for further processing in
accordance with the ORDER herein.

ORDER

(E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.

0520150073

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A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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-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.
STATEMENT OF RIGHTS - ON APPEA

L
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish 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.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
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the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See

29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See

29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION

(Q0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 16, 2015