0120160637
03-01-2016
Adell W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adell W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120160637
Agency No. 1C-452-0027-15
DECISION
On November 14, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 4, 2015, dismissing her complaint (Complaint 2) of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to Complaint 2, Complainant worked as a full time Laborer Custodian, Grade 4 at the Agency's Cincinnati Network Distribution Center in Ohio.2 Subsequently, she became a MPE Mechanic, Grade 9, there.
On October 16, 2015, Complainant filed equal employment opportunity (EEO) Complaint 2 alleging that the Agency discriminated against her based on her race (African-American), national origin (Ethnicity), sex (female), color (Dark), disability, and age (39) when on September 2, 2015, she learned that on August 9, 2014, Custodians, Grade 4 were promoted to MPE Mechanic, Grade 9, and she was denied a promotion to MPE Mechanic, Grade 9, on December 15, 2010.
In her September 2015 EEO intake form, Complainant indicated that she had been an MPE Mechanic, Grade 9 for a year.
Previously, in February 2011, Complainant filed EEO Complaint 1 alleging, in part, that she was discriminated against based on race, color and sex when she was not selected to the position of MPE Mechanic, Grade 9 on December 15, 2010. Following a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ), the AJ found no discrimination on this issue. In September 2012, the Agency issued a final action implementing this decision, which Complainant did not appeal.
In her report on Complaint 2, the EEO Counselor wrote that Complainant relayed that she became aware that Postal Support Employees (PSEs) were converted to MPE Mechanics, and in her hearing on Complaint 1 the Agency stated it does not promote Custodians to MPE-9 Mechanics. The EEO Counselor wrote that Complainant relayed that during that time she identified several people who were promoted, but this was not properly investigated. In intake on Complaint 2, Complainant wrote that she identified several employees during the hearing on Complaint 1, and this was not investigated.
In her report on Complaint 2, the EEO Counselor wrote that the Acting Manager of Maintenance relayed that PSEs were converted to career employees in accordance with a Memorandum of Understanding (MOU), and the comparative employees Complainant provided (presumably the three she identified in intake on Complaint 2) were later promoted to MPE Mechanics in accordance with a collective bargaining agreement. The Acting Manager provided a copy of the MOU, which indicates Maintenance Craft PSEs were converted to career status within 30 days of the signing of the MOU on July 9, 2014.
The Agency dismissed Complaint 2 for raising the same matter as Complaint 1. 29 C.F.R. � 1614.107(a)(1). Citing EEOC precedent, the Agency argues that listing new comparative employees does not create a new claim.
On appeal, Complainant argues that a thorough investigation was not conducted when the AJ found no discrimination on the Complaint 1 issue of her not being promoted to MPE Mechanic, Grade 9. She writes that she will reveal the truth that she mentioned comparative employees during the hearing on Complaint 1 and this was not investigated.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to a request for a hearing, the agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or Commission.
In Complaint 2, Complainant is alleging that she was improperly denied a promotion on December 10, 2010, one of the same issues she raised in Complaint 1. She seeks to relitigate Complaint 1 by in part using new evidence - something she confirms on appeal, but this is not permitted by 29 C.F.R. � 1614.107(a)(1).
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
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
March 1, 2016
__________________
Date
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.
2 This is according to an Equal Employment Opportunity Commission Administrative Judge's decision, which is referenced below.
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