0520110589
10-21-2011
Hla M. Maung, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Hla M. Maung,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Request No. 0520110589
Appeal No. 0120111568
Agency No. 1A-111-0029-09
DENIAL
Complainant timely requested reconsideration of the decision in Hla
M. Maung v. United States Postal Service, EEOC Appeal No. 0120111568
(June 21, 2011). 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(b).
BACKGROUND
The facts and procedural background are set forth in the previous decision
and are incorporated herein by reference. We note the following salient
facts: Complainant was a Mail Processing Clerk, PS-6, at the Agency’s
Queens Processing and Distribution Center in Flushing, New York. On April
25, 2009, he was told that he was being excessed from his Clerk Craft,
Tour 3 Mail Processing Clerk position to a Maintenance Craft, Custodial
position. On July 25, 2009, however, he was returned to his original
Clerk craft position. Complainant filed a formal complaint alleging
discrimination based on race, sex, and age. Following an investigation,
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). Subsequently, the AJ notified the parties of her intent to
issue a decision without a hearing, which was done on October 6, 2010.
The AJ found, among other things, that the Agency articulated legitimate,
nondiscriminatory reasons for its actions and that Complainant did not
establish pretext.
Specifically, the AJ noted the Agency’s contention that, due to the dire
economic situation it was facing, management made a determination that
there were too many clerks at the Queens Processing and Distribution
Center. As a consequence, Complainant was returned his original
craft in accordance with the Collective Bargaining Agreement (CBA).
The Labor Relations Specialist (LR Specialist) was the official who
returned Complainant to a Clerk Craft position after he was initially
excessed to the Custodial Craft. According to the LR Specialist, the
reason Complainant was placed into the custodian position was due to his
medical restrictions at the time. Complainant was going to be placed into
the Carrier Craft, but he submitted medical documentation that prevented
that from happening; the only other positions available were Custodian and
Mail Handler. The LR Specialist stated that Complainant’s race, sex,
and age were not factors in management's decision to have him returned to
his Clerk Craft. The LR Specialist stated that management’s decision was
“based on [Complainant’s] seniority in accordance with the CBA.”
The Manager, Labor Relations (M1) stated that Complainant was returned
to his original Clerk Craft position after having been excessed to the
Custodial Craft because, under the Article 12 of the CBA, he had to return
because he was placed within the installation and outside of his craft. M1
indicated that it was not an “optional retreat rights” situation.
On appeal, Complainant argued that the AJ erred in issuing summary
judgment because there were material facts at issue. According to
Complainant, on July 21, 2009, he requested a change of craft to the
Custodial Craft, but it was denied, while three female employees who were
junior to him were kept in the Custodial Craft. The previous decision
affirmed the Agency’s final order which had adopted the AJ’s finding
of no discrimination.1
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant argues that the previous
decision erred in interpreting the CBA provision regarding the return of
an employee to the employee’s original craft. According to Complainant,
when he was returned to the Clerk Craft in July 2009, there was no
“real job or bid assignment to return to. [sic]” He also indicated
that management notified the Union in August 2009 that there was going
to be a future excessing of Clerks from the Flushing installation.
Thus, Complainant maintains that he is still subject to being removed
from his position at some future date. Moreover, he indicated that,
because he was not placed in a regular bid assignment, unlike three
female employees who were allowed to stay in the Custodial Craft, he is
subject to having his hours and duties changed weekly.
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 (2) will have a substantial
impact on the policies, practices, or operations of the Agency.
Here, we find no evidence that Complainant has met the criteria for
reconsideration. Complainant has never established that the decision
to return him to the Clerk Craft was discriminatory. He merely argues
that the decision was carried improperly and has had a detrimental
effect on him. Assuming, arguendo, that management violated the CBA
by not returning Complainant to a regular bid position, this would not
establish that the original decision to return him to the Clerk Craft
was discriminatory.2
After reconsidering 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(b), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120111568 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
___10/21/11_______________
Date
1 The AJ found that the comparators were not similarly situated to
Complainant.
2 According to Complainant, the Union on his behalf has filed a grievance
on this matter.
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0520110589
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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