0520130677
05-08-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520130677
Appeal No. 0120132092
Agency No. 4C-250-0011-13
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120132092 (August 14, 2013). 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). For the reasons that follow, we DENY Complainant's request.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Roanoke Carrier Annex facility in Roanoke, Virginia. Her work hours were from 8:00 am to 4:30 pm. But then on December 5, 2012, the Agency changed her work hours by 30 minutes, so she now worked from 8:30 am to 5:00 pm. The Agency wrote that the change was "due to operational needs." Complainant felt that the Agency had treated her differently when it kept the start times for the other letter carriers in her unit at 8:00 am. Since the mail was available for all the unit's letter carriers at 8:00 am, Complainant could see no legitimate, nondiscriminatory reason for delaying her start time for half an hour.
Complainant filed a formal complaint, alleging discrimination on the bases of national origin (Lebanese), sex (female), disability, age, and reprisal when:
1. On December 5, 2012, the Agency changed her work hours from 8:00 am to 8:30 am;
2. On December 5, 2012, management questioned her medical restriction when her request for leave under the Family Medical Leave Act was approved;
3. On February 14, 2013, management yelled at her across the work room floor.
The Agency dismissed the entire complaint for failure to state a claim. For claim 1, the Agency reasoned that a change in an employee's start time cannot constitute an adverse employment action. For support, the Agency cited Holmes v. U.S. Postal Serv., EEOC Appeal No. 0120070656 (Mar. 25, 2009), in which the Commission determined that a change of the complainant's start time from 7:45 am to 8:30 am did not constitute a harm or loss with respect to a term, condition, or privilege of employment.
On appeal, the Commission affirmed the dismissal of the entire complaint. For claim 1, the Commission found that a 30-minute change in start time was a de minimus change, which did not constitute a harm or loss with respect to a term, condition, or privilege of employment. The previous decision contrasted a 30-minute de minimus change with a 3.5-hour change, which was characterized not as a change in start time, but as a change to a different work schedule and did constitute an adverse employment action. See Voss v. U.S. Postal Serv., EEOC Appeal No. 0120113871 (Jan 31. 2012).
For claims 2 and 3, the Commission found that the claims were not sufficiently severe or pervasive to constitute an actionable claim of hostile work environment harassment.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant contends that the previous decision clearly erred in dismissing her entire complaint. Among other things, Complainant, with regard to claim 1, stated that "Time changes should only be made to help the service not to hinder. It should not be based on whether or not you are on the overtime desired 1ist. That is [blatant] discrimination. Not everyone can work overtime. My health is not sufficient to work overtime." The Agency did not submit a brief in opposition.
ANALYSIS
In order to merit the reconsideration of a prior decision, the requesting party must submit written argument that tends to establish that at least one of the criteria of 29 C.F.R. � 1614.405(c) is met. The Commission's scope of review on a request for reconsideration is very narrow; it is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. The Commission finds that Complainant's request does not meet the regulatory criteria of 29 C.F.R. � 1614.405(c), in that, the request does not identify a clearly erroneous interpretation of material fact or law, nor does it show that the underlying decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, with regard to claim 1, we find that the previous decision was consistent with Commission precedent. Likewise, we find no error with respect to the previous decision's determination regarding claims 2 and 3. These claims were isolated incidents that were not sufficiently severe or pervasive to constitute an actionable claim of hostile work environment harassment.
CONCLUSION
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. 0120132092 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___5/8/15_______________
Date
2
0520130677
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013