EEOC Appeal 2020001503

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gregg Y., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Request No. 2020001503
Appeal No. 2019001478
Hearing No. 440-2018-00043X
Agency No. 6X000000217
DECISION ON REQUEST FOR RECONSIDERATION
Complainant 	requested 	that 	the 	Equal 	Employment 	Opportunity 	Commission 	(EEOC 	or
Commission) reconsider its decision in EEOC Appeal No. 2019001478 (November 8, 2019).
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 on the instant matter, Complainant alleged the Agency subject him
to discrimination based on race (African-American), sex (male), color (brown), and in reprisal
for prior protected EEO activity when:
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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1. 	on June 30, 2016, Complainant was notified by a fellow employee that she was not
allowed to have Complainant serve as her representative for an EEO complaint the co-
worker had filed; and
2. 	on August 7, 2016, and ongoing, the Agency refused to respond to, or accept and process,
Complainant’s own EEO claims of discrimination and retaliated against him when it did
not allow Complainant to participate in any REDRESS mediation as a counselee.
The Agency initially dismissed Complainant’s complaint finding he did not have standing to file
a claim regarding the Agency's action to preclude him from representing his coworker in the
EEO process. Complainant appealed the dismissal to the Commission in EEOC Appeal No.
0120171308 (July 20, 2017). On appeal, Complainant argued the Agency failed to address his
claim 	regarding 	Agency’s 	preclusion 	in 	his 	own 	EEO 	claims. 	The 	Commission 	found
Complainant did not have standing to raise a claim concerning his preclusion from representing
another employee. 	However, the Commission found the Agency did not reach Complainant's
claim that he was being denied his rights as a complainant with regard to his own EEO claims.
The Commission reversed the dismissal of Complainant’s claim that the Agency was denying
him the right to fully participate, as a Complainant on his own behalf, in the EEO complaint
process and remanded the matter for investigation and processing with regard to his claim the
Agency barred him from participating in the EEO process on his own behalf.
After Complainant requested a hearing, an EEOC Administrative Judge (AJ) dismissed the
complaint for untimeliness. The Agency adopted the AJ’s decision and dismissed the claim
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. 	Complainant
appealed the Agency’s final order.
On appeal, the Commission affirmed the Agency’s dismissal. Specifically, we found the
investigative record showed Complainant’s prior complaints of discrimination in December 2013
and December 2015, were closed on May 9, 2016 and March 7, 2016, respectively. However,
Complainant did not contact an EEO counselor in the instant case until November 8, 2016,
which was well beyond the 45-day time limit. Additionally, we found Complainant failed to
provide sufficient justification for extending or tolling the time limit.
In his request for reconsideration, Complainant argues the Commission erred in affirming the
dismissal because in a prior EEOC appeal, the Commission remanded the matter for the Agency
to investigate and process the complaint. Complainant alleges this finding proves he made timely
contact with an EEO Counselor.
In response to the request for reconsideration, the Agency contends that Complainant has failed
to meet the criteria for reconsideration. Specifically, the Agency points out the prior decision
under EEOC Appeal No. 0120171308 found only that the Agency should investigate and process
his complaint with regard to his own EEO claims. The Agency points out the Commission never
made a determination as to whether Complainant made timely contact with an EEO Counselor.

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The Agency contends the appeal decision should be affirmed because, as the Administrative
Judge properly found, Complainant failed to make timely contact with an EEO Counselor or
provide any justification for waiver of the statutory requirement.
We agree with the Agency’s argument in response to the request for reconsideration. The
Commission never made a determination on whether Complainant’s complaint was timely in
EEOC Appeal No. 0120171308. Our decision allowed for the Agency to process the complaint
as a new complaint, which the Agency did. We note after issuing an Amended Notice of Intent to
Issue Summary Judgment Decision, and receiving responses from both parties, the AJ assigned
to the case dismissed the matter as untimely pursuant to 29 C.F.R. § 1614.109(g), citing to the
undisputed facts in the record. Additionally, the AJ noted in the dismissal Complainant failed to
allege he contacted an EEO Counselor within the 45-day time limit. As we found in our previous
decision on this complaint, Complainant failed to show he made timely contact with an EEO
Counselor or provide justification for a waiver of the 45-day time limit.
After 	reviewing 	the 	previous 	decision, 	the 	entire 	record, 	as 	well 	as 	arguments 	for
reconsideration, 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. 2019001478 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.

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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 27, 2020
Date