Charlie K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0520170156 (E.E.O.C. Mar. 29, 2017)

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

Charlie K.,1
Complainant,

v.

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

Request No. 0520170156

Appeal No. 0120162239

Agency No. 4E-570-0044-15

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the decision in EEOC Appeal No. 0120162239
(November 29, 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 his underlying complaint, which was subsequently amended, Complainant alleged that the
Agency discriminated against him on the bases of sex (male), disability, age (over 40), and in
reprisal for prior protected activity when:

1. On June 16, 2015, he was assaulted by the Manager of Mail Processing Operations;
2. On July 8, 2015 and continuing, he had been interviewed for several management
positions but has not been selected for any of them; and

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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3. On November 23, 2015, his supervisor asked him in a humiliating tone if he was
going to finish his task in time and repeatedly made statements that he was slow and
incompetent.

The Agency accepted claims (1) and (2) for processing and dismissed claim (3) for failure to
state a claim. After the investigation of claims (1) and (2), Complainant was provided with a
copy of the report of investigation and notice of the right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ) or a final decision within 30
days of receipt of the correspondence. The notice was dated April 6, 2016, and sent to
Complainant’s address of record. A copy of the USPS Tracking shows the notice was
delivered to Complainant on April 8, 2016. Complainant did not respond within the applicable
time frame.

On June 17, 2016, the Agency issued a final decision on Complainant’s complaint. The
Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact. The Agency
also found claim (1) had not been raised with an EEO Counselor and was not like or related to
matters for which Complainant underwent counseling. Additionally, the Agency addressed
claims (1) and (2) on the merits, finding no discrimination. The Agency also found
Complainant did not establish that he was subjected to harassment.

On June 27, 2016, Complainant appealed the Agency’s decision to the Commission’s Office of
Federal Operations (OFO).

On June 27, 2016, Complainant also requested a hearing on the same complaint before an
EEOC AJ. On June 30, 2016, the Agency forwarded the case file to the EEOC’s Chicago
District Office in accordance with Complainant’s hearing request.

On November 29, 2016, OFO affirmed the Agency’s decision finding no discrimination for
claims (1) and (2). The Commission also found the evidence did not establish that the
incidents alleged by Complainant occurred because of his sex, disability, age, or prior
protected activity. Further, the Commission noted Complainant did not challenge the partial
dismissal of claim (3). Thus, the Commission did not address claim (3) in the decision.

Thereafter, Complainant filed the present request for reconsideration. In his request,
Complainant noted that he asked the AJ to be allowed to proceed with his case before the AJ.
Complainant included a December 19, 2010 letter from an AJ of the EEOC’s Minneapolis
Area Office regarding EEOC Hearing No. 443-2016-00150X. In the letter, the AJ
acknowledged that Complainant provided him with a copy of OFO’s decision in EEOC Appeal
No. 0120162239, Agency No. 4E-570-0044-15. The AJ noted OFO’s decision addressed
EEOC Hearing No. 443-2016-00150X, which was assigned to the AJ several months earlier.
The AJ noted Complainant claimed the Agency should not have issued a final decision because
he was on medical leave when the deadline for submitting a hearing request expired. The AJ
also noted that Complainant claimed that because the EEOC docketed the case for hearing, he
should be permitted to pursue the case through the hearing process and the Agency’s final
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decision should be vacated. The AJ requested the parties address the impact of the OFO
decision on EEOC Hearing No. 443-2016-00150X. Additionally, the AJ stated
notwithstanding the OFO decision, he wanted the parties to address the merits of EEOC
Hearing No. 443-2016-00150X.2

At the outset, we address Complainant’s request that the Agency’s final decision be vacated
and that he be allowed to proceed with a hearing on his complaint before an EEOC AJ. The
record reveals the Agency properly afforded Complainant the opportunity to request a hearing
on his case; however, he failed to respond within the applicable time frame. Despite delivery
of the notice of the right to request a hearing at Complainant’s address of record on April 8,
2016, he did not request a hearing on his complaint until June 27, 2016, which was after the
Agency issued a final decision on his complaint and the same day he appealed the Agency’s
final decision to OFO. While Complainant claims that he was “totally disabled” from work
between December 8, 2015, and May 26, 2016, he did not provide evidence in his prior appeal
or in the present request for reconsideration showing that he was so incapacitated during the
relevant time frame so as to prevent him from timely submitting his request for a hearing.
Upon review, we find OFO’s prior decision properly affirmed the Agency’s final decision
finding no discrimination.

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. 0120162239 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

2 At the time of this decision, EEOC Hearing No. 443-2016-00150X was still pending before
the AJ.
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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

March 29, 2017
Date