Shanel G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

0520180553 (E.E.O.C. Feb. 5, 2019)

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

Shanel G.,1
Complainant,

v.

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

Request No. 0520180553

Appeal No. 0120140468

Hearing No. 471-2011-00049X

Agency No. 4J-481-0006-11

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120140468 (July 6, 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).

During the relevant period, Complainant was a transitional employee in a City Carrier position at
a Jackson, Michigan facility of the Agency.

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.
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Complainant filed a formal complaint alleging that the Agency discriminated against her based
on disability and reprisal for prior EEO activity when, on September 21, 2010, it issued
Complainant a Notice of Termination, effective October 5, 2010.2

After an investigation into her complaint by the Agency, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). Following a hearing, the assigned AJ found that the
evidence established that the Agency had discriminated against Complainant based on disability
and reprisal. Prior to filing her EEO complaint, Complainant had been bitten by a dog while
delivering the mail, resulting in significant injury to her right hip. This was why Complainant
had requested reasonable accommodation which was denied by the Agency and resulted in the
notice of termination, and was the basis of the AJ’s findings of discrimination/unlawful
retaliation. The Agency issued a final action fully implementing the AJ’s decision.

Among other remedies, the AJ awarded Complainant back pay from October 10, 2010 to the date
of her reinstatement (which was December 23, 2012), less an offset of payments Complainant
received from the Office of Workers’ Compensation Programs (OWCP) resulting from the work-
related injury (dog bite).

The Agency and Complainant later agreed that her lost wages for the relevant period amounted
to $112,050.91. The Agency subtracted $72,077.11 from that amount, which it determined
represented the amount of OWCP benefits she received for the same period.

Complainant, however, appealed the Agency’s back pay decision to this Commission, arguing
that the Agency was not entitled to offset OWCP benefits that she had been required to return in
May 2012 in the amount of $40,376.94.

In EEOC Appeal No. 0120140468, the Commission found that Complainant had entered into a
private personal injury settlement with the dog’s owner and was required to use the settlement
funds to reimburse OWCP in the amount of $40,376.94, representing the benefits it provided her
between October 2010 and May 2012. The Commission found that “make whole” relief for the
Agency discriminating against Complainant required the Agency to credit Complainant the
$40,376.94 she reimbursed OWCP, reducing by that amount the offset it could use against her
lost wages award. As a result, the Commission found that the Agency owed Complainant
$85,312.34 as back pay, with interest. The Commission remanded the matter to the Agency for
remedial action.

The Agency filed the instant request for reconsideration reiterating its prior contentions. In its
reconsideration request, the Agency stated that the Commission erred in finding that
Complainant’s payment to OWCP from a third-party settlement should impact the Agency’s
OWCP offset.

2 The record shows that Agency management did not renew Complainant’s transitional
employment contract and her last day of work was October 5, 2010.
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The Agency stated that said error would allow Complainant “double recovery” in “make whole
relief.” The Agency stated that Complainant was not entitled to a credit for the money she
returned to OWCP ($40,376.94).

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. We find that Appeal No. 0120140468 summarized the relevant
facts and referenced the appropriate regulations, policies, and laws. The relief provided was for a
finding of discrimination against the Agency.

We emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. 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. The Agency has not done so here.

The decision in EEOC Appeal No. 0120140468 remains the Commission's decision. There is no
further right of administrative appeal on the decision of the Commission on this request. The
Agency shall comply with the Order as set forth below.

ORDER

The Agency, to the extent it has not already done so, is ordered to take the following remedial
actions within one hundred and twenty (120) calendar days of the date this decision is issued:

Pay Complainant a total of $85,312.34 as back-pay, with interest, from October
10, 2010 to the date this decision is issued.

A copy of a report of compliance shall be sent to the Compliance Officer as referenced below.

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The 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 the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

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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. 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.
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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

February 5, 2019
Date