0520140489
03-09-2015
Complainant v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520140489
Appeal No. 0120141512
Agency No. 4C-440-0193-13
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120141512 (July 3, 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).
Our previous decision affirmed the Agency's dismissal of Complainant's formal EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the basis of untimely EEO Counselor contact. Complainant underwent an Agency-ordered fitness-for-duty examination on February 14, 2013. In a letter dated March 11, 2013, and addressed to Complainant at his work site, the Agency stated that the examination disclosed that Complainant was not fit to perform the essential functions of his Letter Carrier position. The Agency also stated that it was placing Complainant in a non-duty, non-pay status pending a change in his condition or the availability of a vacant, funded position that would accommodate his condition. The Agency noted that Complainant's treating physician could request a copy of the medical report.
The record indicates that the union filed a March 25, 2013, grievance challenging the Agency's failure to reassign Complainant to a custodial position. According to a January 15, 2014, Step B Decision, "[o]n 3/20/13, the grievant received a letter informing him that he was unfit for duty and needed to have his personal physician request the USPS Medical Team's findings."
Complainant contacted an EEO Counselor on September 17, 2013, to allege that the Agency discriminatorily placed him in a non-pay status. In a formal complaint filed on January 9, 2014, Complainant alleged that the Agency discriminated against him on the basis of disability when he was removed from duty because of his disability. He asserted that the Agency placed him on leave without pay even though he passed three fitness-for-duty examinations. Complainant also asserted, "I have resume[d] my position as of today, which shows the removal was unwarranted." He identified the date of the alleged discrimination as February 14, 2013.
The Agency defined Complainant's allegation as whether the Agency discriminated against Complainant on the basis of disability when, on or about March 20, 2013, Complainant received notice that he had failed a fitness-for-duty examination and was being placed in a non-duty, non-pay status. Noting that Complainant did not initiate EEO counseling within 45 days after being notified that he was being placed in a non-pay status, the Agency dismissed the complaint.
In our previous decision, we found that Complainant did not contact an EEO Counselor within 45 days of the alleged discrimination and did not present any persuasive arguments or evidence warranting an extension of the applicable time limit. Accordingly, we affirmed the dismissal of Complainant's complaint.
In his request for reconsideration, Complainant argues that he was not notified of the Agency's actions until September 2013, when a union steward gave him the March 2013 letter. He submits a statement from the union steward, who states that he initiated the grievance for Complainant on his own. In addition, Complainant asserts that his supervisor told him during a telephone call on February 14, 2013, that he should stay home until he could transfer to the custodian craft. He submits copies of pay stubs that, Complainant argues, establish that he was at home rather than at work during the relevant period. The pay stubs demonstrate that Complainant accumulated 1,236 hours of leave without pay from pay period 12 through pay period 26 in 2013.
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; 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.
Even if Complainant did not receive the Agency's March 11, 2013, letter, he nonetheless was aware of the Agency's actions more than 45 days before he contacted an EEO Counselor in September 2013. The pay stubs that Complainant submits establish that Complainant knew as of pay period 12 that the Agency had placed him in a non-pay status. Complainant has not presented adequate justification for extending the 45-day time limit and has not shown that the previous decision clearly erred in affirming the determination that he did not initiate EEO counseling in a timely manner. Further, he has not shown that the previous decision will have a substantial impact on the policies, practices, or operations of the Agency.
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. 0120141512 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
March 9, 2015
Date
2
0520140489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140489