0520170139
04-17-2017
Shelton D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shelton D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Request No. 0520170139
Appeal No. 0120162499
Agency No. 1K-204-0005-16
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120162499 (November 22, 2016). 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).
In the previous decision, the Commission affirmed the Agency's final decision dismissing Complainant's complaint. Complainant had filed a formal complaint alleging that the Agency discriminated against him based on age when (1) his first-level supervisor (S1) issued him a January 20, 2016, Proposed Letter of Warning (PLW) for Unacceptable Work Performance. He also alleged that the PLW was not in accordance with Agency policy; that no other supervisor at his facility was issued a PLW; that there was no prior discussion of poor employee attendance, which was the subject of the PLW and was a problem for all supervisors, not just Complainant; and that his second-level supervisor (S2) stated in a threatening manner after a May 2016 meeting, "I see no one's retiring yet, [Complainant's name]." The Agency, which characterized Complainant's complaint as alleging only Claim 1, dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(5) because it alleged a proposal to take a personnel action.
The previous decision found that the Agency erroneously viewed Claim 1 as a discrete act of alleged discrimination rather than as one instance in a claim of ongoing harassment. Accordingly, the previous decision held that "the dismissal of Claim 1 as a 'proposed' action was not appropriate because it must be reviewed within the context of Complainant's" allegation regarding S1's comment at the May 2016 meeting.
We also found, however, that Complainant's complaint, taken as a whole, was insufficient to state an actionable claim of harassment. Although Complainant asserted on appeal that S1 and S2 repeatedly commented about his retirement, we determined that his stated claims concerned only the PLW and S2's comment after the May 2016 meeting. We concluded that those two incidents, which occurred months apart, were not sufficiently severe or pervasive to state a claim of harassment.
On appeal, Complainant alleged that, since November 6, 2015, S1 had made it impossible for him to do his job effectively by denying him access to the stock room and the computer room. Because there was no indication in the record that Complainant had raised those claims with an EEO Counselor prior to the appeal, we found that the claims were not at issue in the complaint before us. We advised Complainant to contact an EEO Counselor if he wished to pursue a separate complaint on the new claims.
In his request for reconsideration, Complainant asserts that the Commission erroneously viewed the PLW as a proposed personnel action. He argues that the PLW constituted an adverse action and that managers' comments about his retirement were sufficiently severe to constitute harassment. In addition, Complainant asserts that he raised his claims about denial of access to the stock room and computer room with the EEO Counselor.
We remind Complainant 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) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous 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.
There is no merit to Complainant's assertion that the Commission viewed Claim 1 as a proposal to take a personnel action. On the contrary, the Commission expressly held that the Agency had erroneously dismissed the claim as a proposed action. We then concluded that the entirety of Complainant's complaint did not state an actionable claim of harassment.
Further, the record before us does not support Complainant's assertion that he raised his claims regarding access to the stock and computer rooms with the EEO Counselor. Nothing in the EEO Counselor's Report refers to such claims. Moreover, Complainant did not mention the alleged denial of access in his March 8, 2016, Information for Pre-Complaint Counseling form, in his June 7, 2016, formal complaint, or in the Statement of Facts attached to his formal complaint.
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. 0120162499 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
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
_4/17/17_________________
Date
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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