0520140454
09-25-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Request No. 0520140454
Appeal No. 0120131929
Hearing No. 460-2011-00111X
Agency No. 4G-770-0357-10
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120131929 (June 18, 2014). 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 following reasons, Complainant's request for reconsideration is DENIED.
BACKGROUND
In the appellate decision, Complainant alleged that the Agency discriminated against him on the bases of his race (Black) national origin (Hispanic), sex (male), age (46) and in reprisal for his prior protected EEO activity pertaining to the instant complaint when:
1. he was issued a fourteen-day suspension, dated August 20, 2010, which was subsequently reduced to a Letter of Warning.
2. On October 13, 2010, management placed a document in his file that they knew was incorrect.
3. On November 8, 2010, he was placed in an emergency placement, non-pay status.
4. On December 17, 2010, he was issued a Notice of Removal.
An Equal Employment Opportunity Commission Administrative Judge (AJ), issued a decision without a hearing finding that Complainant failed to demonstrate that he was subjected to reprisal and/or discrimination. The Agency fully implemented the AJ's decision. On appeal, the Commission found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency explained that Complainant was issued a fourteen-day suspension after he failed to follow instructions concerning the amount of time he was required to give away on his route. He was instructed to give away 30 minutes but he ended up giving more. The Agency also stated that Complainant did not establish that an incorrect document had been placed in his electronic official personnel file when a copy of the 14-day suspension was placed there. Finally, in terms of his emergency placement in a non-pay status and the Notice of Removal, the Agency asserted that Complainant's behavior of swearing at his supervisor and refusing to leave the premises and failure to follow instructions warranted the disciplinary measures.
While Complainant argued that, with respect to the fourteen-day suspension he received, other employees had been treated more favorably, the previous decision found that he did not establish that individuals outside of his protected groups who committed similar acts and had the same supervisor received more favorable treatment. Likewise, although Complainant argued that the documentation which reflected the 14-day suspension was improperly placed in his electronic official personnel file, the previous decision found that Complainant did not refute his Postmaster and supervisor's position that they were unaware of any management official placing an incorrect document in to Complainant's file. Finally, with respect to claims (3 - 4), Complainant relied on statements from coworkers attesting to the fact that the supervisor uttered profanities on the workroom floor. The Commission, however, found that this did not serve to mitigate Complainant's conduct as Complainant clearly exhibited disrespect for his supervisor by cursing at her as well as being disobedient by not complying with an order to leave Agency property. The previous decision found that the Agency had sufficient grounds for the discipline that was imposed, and Complainant did not established that any of his protected bases were a factor in the decision to issue the disciplinary actions.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration, Complainant, among other things, reiterates many of his arguments made on appeal. He maintains that he was told to give another worker 30 minutes of work and that he gave away 30 minutes to the best of his experience and the carrier who carried that 30 minutes came back in 37 minutes, and contrary to the Agency's position did not work penalty overtime. Complainant also maintains that he believes that the document was placed in his personnel folder as reprisal for filing a previous EEO complaint. Further, he argues that the Agency did not provide proof of what occurred on November 8, 2010, when he was placed on emergency placement. He maintained that management only provided someone who overheard him allegedly say, "F-k that B-tch." Finally, Complainant maintains that the Notice of Removal was another way that the Agency was retaliating against him. Complainant asks that he be granted a hearing so that the AJ can hear his side of the story.
The Agency did not provide a brief.
ANALYSIS AND FINDINGS
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 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. Nov. 9, 1999), at 9-17. 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. Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision because they were already addressed in the previous decision for the most part, we find Complainant has not met the criteria for reconsideration. Like the previous decision, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. Accordingly, the decision in EEOC Appeal No. 0120131929 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. en's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/25/15________________
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