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

Equal Employment Opportunity Commission

Aug 24, 2018

0520180284 (E.E.O.C. Aug. 24, 2018)

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

Humberto P.,1
Complainant,

v.

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

Request No. 0520180284

Appeal No. 0120180516

Agency No. 1E-981-0041-17

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120180516 (February 7, 2018). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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, Complainant, an Area Maintenance Technician, claimed that he was
discriminated against on the bases of his disability, age, and reprisal for his prior EEO activity.
The claims were framed as follows:

1. On March 6, 2017 and continuing, Complainant’s request to have his permanent work
restrictions removed was denied, causing him to lose overtime.

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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2. In April 2017, Complainant was non-voluntarily hand-picked to paint the Post Office
parking lots until his back was injured.

In its final decision, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2)
on the grounds that Complainant failed to initiate contact with an EEO Counselor in a timely
manner. The Agency determined that Complainant’s EEO Counselor contact occurred
approximately 161 days after the incident in claim (1) and 135 days after the event in claim (2).
The Agency also dismissed claim (1) for stating the same claim as a claim in Agency Case No.
1E-981-0023-17. Claim (2) was also dismissed on the grounds of failure to state a claim.

On appeal, the Commission affirmed the Agency’s dismissal of the complaint on the grounds of
untimely EEO Counselor contact. The Commission found that the alleged discriminatory events
occurred on March 6, 2017, and in April 2017, respectively, but Complainant did not initiate
contact with an EEO Counselor until August 14, 2017, which is beyond the 45-day limitation
period. The Commission found that Complainant did not provide adequate justification for
extending the 45-day limitation period.

In his request for reconsideration, Complainant argues that he should have been allowed to amend
his complaint to include additional claims. Complainant maintains that the Agency did not receive
his agreement of the issues to be investigated.

We observe that Complainant has not presented sufficient persuasive evidence in support of his
position. The Commission emphasizes 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), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate
that the appellate 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. Complainant argues that he was not allowed to amend his complaint and
that the Agency did not properly frame his complaint. Complainant made the same argument to
the Commission on appeal and has not presented any additional evidence that causes us to question
our prior analysis and decision. The record reveals that Complainant did not initiate the EEO
counseling process until August 14, 2017, which was after the expiration of the 45-day limitation
period for each of the claims at issue. We discern no persuasive argument or evidence in
Complainant’s request for reconsideration that satisfy the criteria for granting a request to
reconsider.

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. 0120180516 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request.

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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 24, 2018
Date