0120172497
06-29-2018
Anglea Y.,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
Anglea Y.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120172497
Hearing No. 490201500196X
Agency No. 1C371007414
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, the Agency's June 15, 2017 Final Order concerning an equal employment opportunity ("EEO") complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Mail Handler and Equipment Operator (Level 5) in the Agency's Processing and Distribution Center ("P&DC") in Memphis, Tennessee.
On December 16, 2014, Complainant filed an EEO complaint alleging that she had been subjected to discrimination and a hostile work environment by the Agency on bases of sex (female) and reprisal (prior protected EEO activity)2 when:
From September 16, 2014, to January 13, 2015, Complainant was worked outside her bid position on an ongoing basis.3
Complainant initially raised this matter with the Equal Employment Opportunity Commission ("EEOC" or "Commission") after the Agency dismissed it for failure to state a claim under 29 C.F.R. to �1614.107(a)(1) ("Complaint 1"). See EEOC Appeal No. 0120151033 (May 28, 2015). The Commission remanded Complaint 1 back to the Agency for processing in accordance with �1614.108. The Agency processed Complainant's claims, and on December 16, 2014, Complainant filed the instant complaint ("Complaint 2"). The Agency investigated Complaint 2, then provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Over Complainant's objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency.
The Agency issued its Final Order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. Complainant raised the instant appeal.
ANALYSIS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's Final Order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus.
On appeal, Complainant argues that facts were "omitted and misrepresented." Specifically, she appeals the AJ's denial of her October 21, 2015 Motion to Amend, which requested that the AJ include a new allegation that on October 2, 2015, Management refused her change of schedule request. She also contends that the AJ erroneously omitted disciplinary action incurred on or around June 30, 2014, which she referenced in both formal complaints for Complaints 1 and 2. On appeal and throughout the record, Complainant raises additional instances of harassment that were not discussed in the AJ's Decision. However, the AJ's November 6, 2015 Order Framing Issue and Resetting Deadlines, and November 9, 2015 Order Denying Motion to Amend explain that these allegations were not considered in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). We note that Complainant's appeal contains no evidence, aside from her own bald assertions, that would establish the AJ improperly applied the regulations.
Under 29 C.F.R. � 1614.107(a)(2), a complainant may only raise additional claims that have not been brought before an EEO counselor so long as they are "like or related to a matter on which the complainant has received counseling." A later claim is "like or related" to the original complaint if the later claim or compliant adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original compliant during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014); referencing Scher v. United States Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). The alleged discriminatory action on October 2, 2015 was not raised with an EEO counselor in relation to the original complaint, in this instance Complaint 2, nor was it "like or related" to Complaint 2.
Additionally, 29 C.F.R. � 1614.107(a)(2) provides that a complaint or claim shall be dismissed if it states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). Although Complainant raised the alleged discriminatory action in Complaints 1 and 2, it fell outside the agreed upon time frame for Complaint 2, which was based on Complainant's contemporaneous EEO activity. Likewise, the incidents of harassment Complainant cites were either raised in prior EEO complaints or based on the timing, Complainant had prior opportunity to raise the matters with an EEO Counselor.4 Therefore, we have not considered of Complainant's allegations in the record aside from the accepted issue as framed by the AJ in rendering this decision.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
June 29, 2018
__________________
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 Complainant's Formal Complaint cites Agency Case No. 1C381001011 (EEOC Appeal No. 0120120768 reconsideration denied EEOC Request No. 0520120461) (resolved via settlement agreement in May 2013); EEOC Appeal No. 0120151033 (May 28, 2015) ("Complaint 1")
3 AJ's Order, Framing Issue and Resetting Deadlines, (Nov. 6, 2015), based an October 26, 2015 meeting with the parties about framing Complainant's complaint.
4 On August 28, 2014 Complainant filed Agency Case No. 1C371004914, EEOC Appeal No. 0120150032 (Mar. 4, 2015) reconsideration denied EEOC Request No. 0520150299 (Jun. 17, 2015), which contained some of the same dates and harassment allegations referenced in Complaint 1 and in the instant appeal.
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