Blake H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 12, 2019

2019003610 (E.E.O.C. Sep. 12, 2019)

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

Blake H.,1
Complainant,

v.

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

Request No. 2019003610

Appeal No. 0120182313

Hearing No. 530-2017-00246X

Agency No. 4C-080-0122-16

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Blake H. v. U.S. Postal Serv., EEOC Appeal No.
0120182313 (Apr. 12, 2019). 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).

Complainant, a Rural Letter Carrier, OO-08, at the Agency's Carrier Annex in Pleasantville, New
Jersey, filed an EEO complaint alleging discrimination based on disability (back, shoulder) when
on or around June 6, 2016, he was issued a separation disability letter effective July 10, 2016.
Following an investigation, Complainant requested a hearing before an EEOC Administrative
Judge (AJ).

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.
2019003610

2
The AJ assigned to the matter granted the Agency’s motion for summary judgment and issued a
decision finding that Complainant had not been subjected to discrimination as alleged. The
Agency subsequently issued a final order fully implementing the AJ’s decision.

In our previous decision, the Commission affirmed the Agency’s final order finding that the
Agency had articulated legitimate, nondiscriminatory reasons for its actions. According to the
record, Complainant suffered work-related injuries in December 2007, and was unable to work for
the next seven years. On September 12, 2014, Complainant returned to work in a limited duty
assignment. However, on September 25, 2014, Complainant aggravated his back condition and
went to the emergency room. After returning to work, Complainant suffered injuries due to an
off-duty motor vehicle accident on January 16, 2015 and was placed in Leave Without Pay status
on March 7, 2015. Complainant did not return to work thereafter. Approximately 16 months after
his motor vehicle accident, on May 18, 2016, the Agency issued Complainant a letter which
furnished him with four options. Complainant could seek accommodation into a different
position, resign, apply for disability retirement, or be involuntarily separated from employment.
Complainant submitted a response on May 25, 2016, but did not elect any of the four options. As
a result, the Agency notified Complainant he was being separated from employment effective July
10, 2016, because he had not reported to work since March 6, 2015 nor submitted sufficient
documentation in support of his absence. The Commission found that Complainant failed to rebut
the Agency’s reasons as pretextual. As a result, the Commission found that Complainant was not
subjected to discrimination.

In his request for reconsideration, Complainant expresses his disagreement with the previous
decision and largely reiterates the arguments he raised on appeal. Complainant argues that
“attendance and timing are neither duties nor outcomes by themselves” and therefore, the
Commission’s decision is wrong because attendance should not be considered an essential function
of the job. Moreover, Complainant contends that the record is devoid of evidence that he was
unable to perform the essential duties of the job. Complainant argues that the Agency’s letter was
based on an improper premise – that he was on leave without pay since March 6, 2015. Rather,
Complainant argues, “he had only been without pay since March 11, 2016, when the [workers’
compensation] benefit was terminated.”

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), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request
No. 0520070736 (Aug. 20, 2007). A request for reconsideration is not the time for Complainant
to raise new evidence or new arguments. 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. Complainant has not presented any persuasive evidence to
support reconsideration of the Commission’s decision.

2019003610

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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. 0120182313 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

September 12, 2019
Date