Shanel G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 5, 20190520180553 (E.E.O.C. Feb. 5, 2019) Copy Citation 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. 0520180553 2 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. 0520180553 3 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. 0520180553 4 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. 0520180553 5 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 Copy with citationCopy as parenthetical citation